If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

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

LAKELAND NEUROCARE CENTERS and VHS 

OF MICHIGAN, INC, doing business as 

DETROIT MEDICAL CENTER,

Plaintiffs-Appellants,

and

JACULYN GORDON,

Intervening Plaintiff,

UNPUBLISHED

October 8, 2019

v No. 340346

Wayne Circuit Court

EVEREST NATIONAL INSURANCE 

COMPANY, ARROWHEAD GENERAL 

INSURANCE AGENCY, and NDS INSURANCE 

AGENCY, INC, doing business as PREMIER 

INSURANCE AGENCY XXV,

LC No. 17-005081-NF

Defendants-Appellees.

LAKELAND NEUROCARE CENTERS and VHS 

OF MICHIGAN, INC, doing business as

DETROIT MEDICAL CENTER,

Plaintiffs,

and

JACULYN GORDON,

Intervening Plaintiff-Appellee,

v No. 340349

Wayne Circuit Court
-2-

EVEREST NATIONAL INSURANCE 

COMPANY,

LC No. 17-005081-NF

Defendant-Appellant,

and

ARROWHEAD GENERAL INSURANCE 

AGENCY and NDS INSURANCE AGENCY, 

INC, doing business as PREMIER INSURANCE 

AGENCY XXV,

Defendants.

Before: JANSEN, P.J., and CAMERON, and TUKEL, JJ.

PER CURIAM.

In Docket No. 340346, plaintiffs Lakeland Neurocare Centers (Lakeland) and VHS of 

Michigan (VHS), doing business as Detroit Medical Center (DMC) (collectively, “plaintiffs”), 

appeal by leave granted1 the trial court order granting defendant Everest National Insurance 

Company (Everest) summary disposition in this third-party no-fault matter.

2

 Plaintiffs argue on 

appeal that the trial court erred when it granted Everest summary disposition because plaintiffs 

had valid assignments, antiassignment clauses are void, the assignments made a present transfer 

of rights, the antiassignment clause is unenforceable to postloss claims, the assignments were 

permitted under the no-fault act, MCL 500.3101 et seq., and the antiassignment clause is 

ineffective under the Uniform Commercial Code (UCC), MCL 440.1101 et seq. Plaintiffs also 

argue that the trial court erred when it denied their request to file an amended complaint. We 

agree that Everest was not entitled to summary disposition, but the trial court did not commit 

plain error affecting substantial rights when it declined plaintiffs’ request to file an amended 

complaint. Accordingly, we reverse, and remand for further proceedings consistent with this 

opinion. 

 1 Lakeland Neurocare Ctrs v Everest Nat’l Ins Co, 502 Mich 936; 916 NW2d 214 (2018). The 

Michigan Supreme Court remanded both of these consolidated cases to this Court for 

consideration as on leave granted. Id. at 936. 

2 Although the Supreme Court order remanding these cases for consideration as on leave granted 

denotes defendants Arrowhead General Insurance Agency and NDS Insurance Agency, Inc, 

doing business as Premier Insurance Agency XXV, as “Defendants-Appellees,” the order 

appealed from by plaintiffs grants [only] Everest summary disposition. Plaintiffs’ claims against 

these other defendants were not decided by the trial court, and they have not filed any briefs on 

appeal in either of these consolidated cases. 
-3-

In Docket No. 340349, Everest appeals by leave granted3 the trial court order granting 

intervening plaintiff Jaculyn Gordon’s motion to intervene in this no-fault matter.4 Everest 

argues on appeal that the trial court erred in determining that Gordon’s complaint related back to 

plaintiffs’ complaint. Additionally, Everest argues that Shah v State Farm Mut Auto Ins Co, 324 

Mich App 182; 920 NW2d 148 (2018), was wrongly decided, but if it is upheld, Gordon lacked 

standing to intervene, and if Shah is reversed, and the antiassignment clause is upheld, plaintiffs 

had no standing, and the court lacked subject-matter jurisdiction. We disagree in part because

the trial court did not abuse its discretion in allowing Gordon to intervene, but we agree with 

Everest’s contention that Gordon’s claims did not relate back to the filing of plaintiffs’ 

complaint. Accordingly, we affirm in part, reverse in part, and remand for further proceedings 

consistent with this opinion. 

I. RELEVANT FACTUAL BACKGROUND

This case arises from an automobile accident involving Gordon on June 27, 2016, from 

which she sustained injuries. Gordon struck a pot hole at a high speed, and sustained a broken 

arm, dislocated hip, and multiple pelvic fractures that required surgery. Plaintiffs provided 

medical services to Gordon in relation to her injuries in the amount of $288,073.52. At the time 

of the accident, Gordon had an insurance policy with Everest. When plaintiffs tried to claim 

benefits under Gordon’s policy for the services that they provided to Gordon, Everest attempted 

to rescind Gordon’s auto insurance policy, claiming that Gordon did not disclose a licensed 

driver of her household on her application for insurance. 

Gordon initially executed an assignment of benefits to plaintiffs on March 18, 2017, and 

plaintiffs filed suit on March 30, 2017, alleging their assignee status. The Michigan Supreme 

Court issued its opinion in Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191; 

895 NW2d 490 (2017), on May 27, 2017, holding that medical providers have no direct cause of 

action against insurers for personal protection insurance (PIP) benefits. On June 14, 2017, 

Everest filed a motion for summary disposition seeking to dismiss plaintiffs’ claims under 

Covenant. Gordon executed a second assignment of benefits to plaintiffs on June 17, 2017, 

because she was still receiving treatment for her accident-related injuries. On July 28, 2017, 

Gordon filed an emergency motion to intervene as a party plaintiff. The trial court granted 

Everest summary disposition under Covenant, and upheld the antiassignment clause in Gordon’s

insurance policy. The trial court also granted Gordon’s motion to intervene, and determined that 

her claims related back to the date that plaintiffs filed their complaint. Plaintiffs and Everest 

filed applications for leave to appeal these orders in this Court, which were denied.5 Plaintiffs 

 3 See footnote 1. 

4 Although defendants Arrowhead and NDS opposed Gordon’s motion to intervene in the trial 

court, they have not challenged the trial court order granting intervention or otherwise 

participated in this appeal. 

5 Lakeland Neurocare Ctrs v Everest Nat’l Ins Co, unpublished order of the Court of Appeals, 

entered February 16, 2018 (Docket No. 340346); Lakeland Neurocare Ctrs v Everest Nat’l Ins 

Co, unpublished order of the Court of Appeals, entered February 16, 2018 (Docket No. 340349).
-4-

and Everest filed for leave to appeal in the Michigan Supreme Court, which remanded both cases 

to this Court as on leave granted.6 We consolidated these cases for appeal on remand.

II. DOCKET NO. 340346

A. EVEREST’S MOTION FOR SUMMARY DISPOSITION

Plaintiffs argue on appeal that the trial court erred in granting Everest summary 

disposition because they had valid assignments from Gordon that reflected an intent to make a 

present transfer, the antiassignment clause in the policy was void and unenforceable as to 

postloss claims, the assignments were valid under the no-fault act, and the antiassignment 

provision was ineffective under the UCC. We agree that the trial court erred in granting Everest 

summary disposition because plaintiffs had valid assignments from Gordon. 

This Court reviews de novo a trial court’s grant of summary disposition. Lowrey v LMPS 

& LMPJ, Inc, 500 Mich 1, 5-6; 890 NW2d 344 (2016). Everest moved for summary disposition 

under MCR 2.116(C)(8), arguing that plaintiffs failed to state a claim upon which relief could be 

granted under Covenant. However, the trial court considered materials outside of the pleadings 

that the parties attached to their briefs, so the motion should be evaluated on appeal under MCR 

2.116(C)(10). Shah, 324 Mich App at 206. See also, El-Khalil v Oakwood Healthcare, Inc, ___ 

Mich ___, ___; ___ NW2d ___ (2019) (Docket No. 157846); slip op at 9-11, 10 n 5 (where the 

trial court considered evidence attached to pleadings as substantive evidence, review under MCR 

2.116(C)(8) was improper).

The court determined that there was an antiassignment clause in the Everest insurance 

policy, which it upheld. The policy was attached to Everest’s reply to plaintiffs’ response to 

Everest’s motion for summary disposition. The assignments that plaintiff relied on were 

attached to its response to Everest’s motion for summary disposition. Although a written 

instrument forming the basis for a claim or defense attached or referred to in a pleading may be 

treated as “part of the pleading for all purposes,” MCR 2.112(F), neither the insurance policy, 

nor the assignments were attached or referred to in a pleading. A “pleading” includes only a 

“complaint, cross-claim, counterclaim, third-party complaint, an answer to any of the 

aforementioned pleadings, or a reply to an answer.” MCR 2.110(A). See Shah, 324 Mich App 

at 206-207. The insurance policy and the assignments were not attached to the complaint, or to 

Everest’s answer to plaintiffs’ complaint. 

Thus, the standard of review for MCR 2.116(C)(10) applies:

A motion for summary disposition brought pursuant to MCR 2.116(C)(10)

tests the factual support for a claim. Summary disposition is appropriate under 

MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the 

moving party is entitled to judgment as a matter of law. A motion pursuant to 

MCR 2.116(C)(10) is reviewed by considering the pleadings, admissions, and 

 6 See footnote 1. 
-5-

other evidence submitted by the parties in the light most favorable to the 

nonmoving party. 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. It is well settled that the circuit court may 

not weigh the evidence or make determinations of credibility when deciding a 

motion for summary disposition. Moreover, a court may not make findings of 

fact; if the evidence before it is conflicting, summary disposition is improper. 

[Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d 369 (2018) (citations, 

quotation marks, emphasis and brackets removed).]

In addition, “[t]he interpretation of contractual language, as well as the determination of 

whether that contractual language is ambiguous, is a question of law that we review de novo.” 

Kyocera Corp v Hemlock Semiconductor, LLC, 313 Mich App 437, 445; 886 NW2d 445 (2015) 

(citations and quotation marks omitted). 

In Covenant, the Michigan 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 rather, “a provider that furnishes healthcare services to a 

person for injuries sustained in a motor vehicle accident may seek payment from the injured 

person for the provider’s reasonable charges.” Covenant, 500 Mich at 196, 217. Therefore, the

trial court did not err when it determined that, as an initial matter, Covenant applied to preclude 

plaintiffs’ claims because they were medical providers. Plaintiffs did not have a direct cause of 

action against Everest for Gordon’s bills. Id. “[A] provider simply has no statutory cause of 

action of its own to directly sue a no-fault insurer.” Id. at 217-218. Plaintiffs’ cause of action 

would be against Gordon, the patient, rather than the insurer, Everest. Id. at 217. Therefore, the 

trial court did not err when it determined that plaintiffs could not directly bring a claim for 

Gordon’s unpaid bills against Everest under Covenant. 

However, the trial court erred in determining that the assignments from Gordon to 

plaintiffs were unenforceable because of the antiassignment clause in Everest’s policy that 

required written consent for an assignment. 

Covenant provides that a healthcare provider does not have a statutory cause of action 

against a no-fault insurer. Covenant, 500 Mich at 217-218. This decision applied retroactively. 

W A Foote Mem Hosp v Mich Assigned Claims Plan, 321 Mich App 159, 196; 909 NW2d 38 

(2017). Rather, a healthcare provider must recover costs directly from “the person to whom 

services were provided.” Covenant, 500 Mich at 218. However, this did not alter “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. Under generally applicable principles of contract law, rights can be assigned unless 

the assignment is clearly restricted. Burkhardt v Bailey, 260 Mich App 636, 653; 680 NW2d 453 

(2004). An assignee stands in the shoes or position of the assignor, possessing the same rights, 

and being subject to the same defenses as the assignor. Id. 

The rules of contract interpretation apply to insurance policies. Rory v Continental Ins 

Co, 473 Mich 457, 461; 703 NW2d 23 (2005), implied overruling on other grounds recognized 

in W A Foote Mem Hosp, 321 Mich App at 183-184. “In ascertaining the meaning of a contract, 

we give the words used in the contract their plain and ordinary meaning that would be apparent 
-6-

to a reader of the instrument.” Rory, 473 Mich at 464. Unambiguous contracts must be enforced 

as written. Id. at 468. “[U]nless a contract provision violates law or one of the traditional 

defenses to the enforceability of a contract applies, a court must construe and apply unambiguous 

contract provisions as written.” Id. at 461. Although clear and unambiguous, a contract 

provision is unenforceable if it violates law or public policy. Shah, 324 Mich App at 197. 

Assignments are generally permitted unless the contract clearly states otherwise. Id. 

In Shah, this Court held that an antiassignment clause in an insurance policy was 

unenforceable for violating Michigan public policy. Id. at 200. The policy in Shah provided, “ 

‘No assignment of benefits or other transfer of rights is binding upon us [i.e., defendant] unless 

approved by us.’ ” Id. at 198. An individual was injured in a motor vehicle accident on 

November 30, 2014, and the defendant insurance company was his insurer. Id. at 186. The 

plaintiffs provided care and medical services to the individual, and submitted their costs to the 

defendant, but the defendant refused to pay. Id. The plaintiffs submitted their original complaint 

on February 24, 2017, and the Covenant decision was issued on May 25, 2017. Id. The 

plaintiffs obtained an assignment of rights from the injured individual on July 11, 2017, in order 

to pursue payment of no-fault benefits for the services that the plaintiffs already provided. Id. at 

187-188. This Court held that the antiassignment clause was unenforceable as to an assignment 

obtained after the loss occurred for an accrued claim of payment because the prohibition of such 

an assignment in the policy violated Michigan public policy. Id. at 200. This Court 

subsequently reaffirmed the holding in Shah. Henry Ford Health Sys v Everest Nat’l Ins Co, 326 

Mich App 398, 405; 927 NW2d 717 (2018), held in abeyance 926 NW2d 258 (2019) 

(“Accordingly, we must conclude that the antiassignment clause in defendant’s policy is 

unenforceable because it is contrary to public policy.”).7 

The language of Everest’s auto insurance policy is clear and unambiguous. Gordon’s 

policy with Everest provided: 

TRANSFER OF YOUR INTEREST

Interest in this Policy may not be assigned without our written consent. 

As argued by plaintiffs, however, courts have refused to enforce antiassignment clauses 

when the loss at issue occurs before the assignment was executed. In Shah, the Court stated: 

“The assignment having been made after the loss did not require consent of 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 

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

the application for leave to appeal filed in Shah to address the validity of antiassignment clauses. 

Shah v State Farm Mut Auto Ins Co, 503 Mich 882, 882; 918 NW2d 528 (2018). However, as of 

this date, Shah remains binding precedent, and must be followed. MCR 7.215(C)(2); MCR 

7.215 (J)(1). The Supreme Court is also holding the appeal in Henry Ford Health Sys in 

abeyance pending the Shah decision. Henry Ford Health Sys, 926 NW2d at 258. 
-7-

cause of action. It is the absolute right of every person–secured in this state by 

statute–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 Ins Co v Carrington, 43 Mich 252, 254; 5 NW 303 

(1880).] 

As such, Everest’s argument that Gordon’s assignments were void on the basis of the policy

language lacks merit, and the trial court erred in upholding the antiassignment clause. Gordon’s 

car accident occurred on June 27, 2016. She made postloss assignments to plaintiffs on March 

18, 2017, and June 17, 2017. Therefore, the trial court erred in granting Everest summary 

disposition because plaintiffs could proceed with their claims under the valid assignments 

executed by Gordon, despite the antiassignment clause in the insurance policy. Shah, 324 Mich 

App at 199. 

Although Everest argues on appeal that Roger Williams is no longer good law, the Shah 

Court recognized: 

[A]s our Supreme Court has instructed, we are bound to follow its decisions 

except where those decisions have clearly been overruled or superseded. There is 

no indication that Roger Williams or its holding relating to antiassignment clauses 

has been clearly overruled or superseded. Therefore, if the continued validity of 

Roger Williams is to be called into question, it will have to be by our Supreme 

Court. [Shah, 324 Mich App at 201 (quotation marks and citation omitted).]

Because this Court recognized that unambiguous contract terms must generally be enforced as 

written, yet also applied Roger Williams, this Court must continue to follow Shah. MCR 

7.215(J)(1); Holland Home v Grand Rapids, 219 Mich App 384, 394; 557 NW2d 118 (1996) (“A 

decision by any panel of this Court is controlling precedent until a contrary result is reached by 

this Court or the Supreme Court takes other action.”). 

Because this matter is governed by, and resolved under, the no-fault act, and

corresponding case law, it is unnecessary to discuss plaintiffs’ argument regarding the UCC on 

appeal. See Henry Ford Health Sys, 326 Mich App at 401-402 (where the plaintiff healthcare 

provider argued in the lower court in response to Everest’s motion for summary disposition that 

the antiassignment clause was void under the UCC, this Court held that the clause was 

unenforceable under Shah, and did not discuss the UCC). 

Regardless, because this case pertains to a no-fault action, “the more specific statute 

controls.” Mich Deferred Presentment Servs Ass’n v Comm’r of Office of Fin & Ins Regulation, 

287 Mich App 326, 334; 788 NW2d 842 (2010). Shah is the leading case on the validity of 

antiassignment clauses, and nowhere does it rely on the UCC to render antiassignment or consent 
-8-

clauses invalid. Rather, the Shah Court deemed antiassignment clauses unenforceable because of 

public policy. Shah, 324 Mich App at 198-201. This reasoning applies in this case as well.

8

 

B. PLAINTIFFS’ REQUEST FOR LEAVE TO FILE AMENDED COMPLAINT

Plaintiffs also argue on appeal that the trial court erred when it denied their request for 

leave to file a first amended complaint to clarify that they had valid standing under the

assignments. We disagree.

“Generally, an issue is not properly preserved if it is not raised before, addressed by, or 

decided by the lower court or administrative tribunal.” Gen Motors Corp v Dep’t of Treasury, 

290 Mich App 355, 386; 803 NW2d 698 (2010). Plaintiffs argued in their response to Everest’s 

motion for summary disposition that they should be granted leave to file a first amended 

complaint to more specifically allege that their action was on the basis of assignments from 

Gordon. Everest did not respond to this argument in its reply to plaintiffs’ response. The trial 

court held a hearing on Everest’s motion for summary disposition, and the parties argued 

consistent with their briefs. The court determined that plaintiffs had no cause of action under 

Covenant, and upheld the antiassignment clause in the insurance policy, dismissing plaintiffs’ 

claims. In dismissing plaintiffs’ suit, the court, therefore, had no reason to specifically address 

and decide plaintiffs’ request to amend. However, this means that the issue is unpreserved for 

appeal. Id. 

It is within the discretion of the trial court to grant or deny leave to amend pleadings. PT 

Today, Inc v Comm’r of Office of Fin & Ins Servs, 270 Mich App 110, 142; 715 NW2d 398 

(2006). The trial court “may, on reasonable notice and on just terms, permit [a] party to serve a 

supplemental pleading.” MCR 2.118(E). An abuse of discretion occurs when the decision of the 

trial court is outside the range of reasonable and principled outcomes. Shah, 324 Mich App at 

208. However, the review of this Court of an unpreserved error is limited to a determination of 

whether a plain error occurred affecting substantial rights. Rivette v Rose-Molina, 278 Mich App 

327, 328; 750 NW2d 603 (2008). “To avoid forfeiture under the plain-error rule, three 

requirements must be met: (1) an error must have occurred; (2) the error was plain, i.e., clear or 

obvious, and (3) the plain error affected substantial rights.” Id. at 328-329 (quotation marks and 

 8 We note that decisions of other courts have recognized lower court decisions determining that 

the UCC prohibited antiassignment clauses. See ZMC Pharmacy, LLC v State Farm Mut Auto 

Ins Co, 307 F Supp 3d 661, 671 (ED Mich, 2018) (“Relatedly, Michigan courts have held postCovenant that the Michigan [UCC] prohibits restrictions on assignments of healthcare insurance 

receivables. [Citing Mich Brain and Spine Surgeons, PLLC v State Farm Mut Auto Ins Co, No. 

17-158827-NF, Oakland County Cir Ct, August 9, 2017, slip op at 6] (‘The UCC plainly 

prohibits all restrictions on a health[]care provider’s receiving and relying on a patient 

assignment of benefit due in payment for services from an insurance company. . . .’).”) 

Decisions of lower federal courts are not binding on this Court, but may be considered as 

persuasive authority. Abela v Gen Motors Corp, 469 Mich 603, 606-607; 677 NW2d 325 

(2004).
-9-

citation omitted). “[A]n error affects substantial rights if it caused prejudice, i.e., it affected the 

outcome of the proceedings.” In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008). 

We acknowledge that plaintiffs were required to attach the assignments to their complaint 

because their assignment-related claim was “based on a written instrument.” MCR 2.113(C)(1).9 

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 Pontiac, 

260 Mich App 127, 133; 676 NW2d 633 (2003). Although plaintiffs asserted in their complaint 

that they were assignees of Gordon (because Gordon executed assignments before plaintiffs filed 

suit), plaintiffs did not attach the assignments to their complaint. Plaintiffs attached the 

assignments as an exhibit to their response to Everest’s motion for summary disposition, and 

therein requested, if necessary, leave to file a first amended complaint to clarify their standing as 

assignees. 

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.) When summary disposition is granted 

under MCR 2.116(C)(10), the court should allow the nonprevailing party to amend its pleadings 

unless amendment is unjustified or futile. Ormsby v Capital Welding, Inc, 471 Mich 45, 52-54; 

684 NW2d 320 (2004). A motion to amend should be denied only for particularized reasons, 

including undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue 

prejudice to the opposing party, or futility. PT Today, Inc, 270 Mich App at 143. The trial court 

must provide specific reasons for denying leave to amend. Id. Failure to do so requires reversal 

unless the amendment would be futile. Id. “[A]mendment is generally a matter of right rather 

than grace.” Id. Here, the trial court granted Everest’s motion for summary disposition under 

Covenant, and upheld the antiassignment clause in the policy, so it did not discuss plaintiffs’ 

request to amend. 

MCR 2.118(D) provides that an “amendment that adds a claim or defense relates back to 

the date of the original pleading if the claim or defense asserted in the amended pleading arose 

out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the 

original pleading.” Amended pleadings may relate back to the date of the original pleadings, but 

supplemental pleadings cannot. Shah, 324 Mich App at 203. MCR 2.118(E) governs 

supplemental pleadings, and provides: 

On a motion of a party the court may, on reasonable notice and on just terms, 

permit the party to serve a supplemental pleading to state transactions or events 

that have happened since the date of the pleading sought to be supplemented, 

 9 This provision was found in MCR 2.113(F)(1) at the time of the lower court proceedings, and 

before the Michigan Supreme Court amended the court rule, effective September 1, 2018. 
-10-

whether or not the original pleading is defective in its statement of a claim for 

relief or a defense. 

In Shah, the plaintiff medical providers filed suit directly against the defendant insurer, 

and after Covenant was issued, the plaintiffs obtained assignments. Id. at 187-189. Then the 

plaintiffs sought to amend their complaint to bring their lawsuit under an assignment-of-rights 

theory. Id. at 202-203. This Court had to determine whether the plaintiffs’ request constituted 

an amended complaint, or a supplemental pleading, for purposes of the relation-back doctrine. 

Id. at 202-205.

It is routinely recognized that “[a]n assignee stands in the position of the assignor, 

possessing the same rights and being subject to the same defenses.” Burkhardt, 260 Mich App at 

654. Thus, the Shah Court determined that the plaintiffs were afforded only the same rights that 

the injured person possessed as of the date of the assignment. Shah, 324 Mich App at 204. 

Additionally, the Shah Court determined that the plaintiffs’ attempt to amend their complaint 

was actually an attempt to supplement the pleadings. The Shah court reasoned that “the 

procurement of the assignments was an event that occurred after the filing of the original 

complaint and provided the only means by which plaintiff[ ] could have standing to maintain a 

direct action against defendant insurer for recovery of no-fault benefits in this case.” Id. 

(emphasis added), citing Covenant, 500 Mich at 195-196, 217 n 40. And a supplemental 

pleading under MCR 2.118(E) cannot relate back to the date of the original pleading. Shah, 324 

Mich App at 204-205. 

On one hand, this case is distinguishable from the facts in Shah because Gordon executed 

the first assignment before plaintiffs filed suit. Gordon executed the first assignment of benefits 

on March 18, 2017, and plaintiffs filed their complaint on March 30, 2017, asserting their 

assignee status. However, after plaintiffs filed suit and Covenant was issued, Gordon executed a 

second assignment on June 17, 2017. Under Covenant, the assignments “provided the only 

means by which plaintiffs could have standing to maintain a direct action against defendant 

insurer for recovery of no-fault benefits.” Id. at 202-204. Thus, plaintiffs’ request to amend 

their complaint was actually a request to supplement the pleadings, and the relation-back 

doctrine would not apply. Id. 

However, this is irrelevant because Gordon executed the first assignment on March 18, 

2017, which is the date upon which the one-year-back rule in MCL 500.3145 would apply. Even 

though the complaint was filed thereafter, the date of the first assignment marks the relevant date 

for the one-year-back rule. Id. at 204. The validity of assignments is subject to scrutiny under 

the one-year-back rule in MCL 500.3145, which was recently amended10, and provides: 

(1) An action for recovery of personal protection insurance benefits 

payable under this chapter for an accidental bodily injury may not be commenced 

later than [one] year after the date of the accident that caused the injury unless 

 10 See 2019 PA 21. 
-11-

written notice of injury as provided in subsection (4) has been given to the insurer 

within [one] year after the accident or unless the insurer has previously made a 

payment of personal protection insurance benefits for the injury. 

(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 [one] 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 [one] 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. 

(4) The notice of injury required by subsection (1) may be given to the 

insurer or any of its authorized agents by a person claiming to be entitled to 

benefits for the injury, or by someone in [sic] the person’s behalf. The notice 

must give the name and address of the claimant and indicate in ordinary language 

the name of the person injured and the time, place, and nature of the person’s 

injury.

(5) An action for recovery of property protection insurance benefits may 

not be commenced later than [one] year after the accident. 

“The one-year-back rule is designed to limit the amount of benefits recoverable under the nofault act to those losses occurring no more than one year before an action is brought.” Joseph v 

Auto Club Ins Ass’n, 491 Mich 200, 203; 815 NW2d 412 (2012).

Plaintiffs sought to recover benefits from the date of the car accident, June 27, 2016, 

through the date of the second assignment, June 17, 2017. Because June 27, 2016, is within one 

year back of the first assignment on March 18, 2017, and the second assignment on June 17, 

2017, plaintiffs could make a claim for these bills under the valid assignments. MCL 

500.3145(1). As such, there was no plain error affecting substantial rights in the trial court’s 

failure to allow plaintiffs to file a first amended complaint because the assignments were signed 

before the complaint was filed, making the relation-back doctrine a nonissue. Plaintiffs obtained 

the rights of Gordon upon the execution of her assignments, and the services rendered were 

within one year back of the date of each assignment. Thus, there was no plain error that affected 

the outcome of the proceedings because plaintiffs obtained the rights of Gordon to claim PIP 

benefits upon the date of the first assignment. Because the trial court erred in granting Everest 

summary disposition, and remand for further proceedings is appropriate, plaintiffs may proceed 

on their claims upon remand without filing an amended complaint or supplemental pleading. 

Their status as assignees was made clear in their original complaint.
-12-

III. DOCKET NO. 340349

A. GORDON’S MOTION TO INTERVENE

Everest argues on appeal that the trial court abused its discretion by allowing Gordon to 

intervene, depending on the outcome of the appeal of Shah in the Michigan Supreme Court.

11 If 

Shah is affirmed, and the assignments are valid, Everest argues that Gordon lacked standing to 

intervene. If Shah is reversed, and the assignments are invalid, then plaintiffs lacked standing to 

file suit, and the order allowing Gordon to intervene is erroneous because the trial court lacked 

subject-matter jurisdiction. We disagree with Everest’s assertion that the trial court abused its 

discretion by allowing Gordon to intervene. 

“This Court reviews a trial court’s decision on a motion to intervene for an abuse of 

discretion.” Auto-Owners Ins Co v Keizer-Morris, Inc, 284 Mich App 610, 612; 773 NW2d 267 

(2009). “ ‘An abuse of discretion occurs when the decision results in an outcome falling outside 

the principled range of outcomes.’ ” Id. (citation omitted). 

As an initial matter, Everest’s arguments on appeal depend on the outcome of the mini 

oral argument scheduled in Shah in the Michigan Supreme Court. Shah is a published decision 

of this Court with binding precedential effect. See MCR 7.215(C)(2) (“A published opinion of 

the Court of Appeals has precedential effect under the rule of stare decisis. The filing of an 

application for leave to appeal to the Supreme Court or a Supreme Court order granting leave to 

appeal does not diminish the precedential effect of a published opinion of the Court of 

Appeals.”); MCR 7.215(J)(1) (“A panel of the Court of Appeals must follow the rule of law 

established by a prior published decision of the Court of Appeals on or after November 1, 1990, 

that has not been reversed or modified by the Supreme Court, . . . .”). “It is the [Michigan] 

Supreme Court’s obligation to overrule or modify [caselaw] if it becomes obsolete, and until [the 

Michigan Supreme] Court takes such action, the Court of Appeals and all lower courts are bound 

by that authority.” Lakin v Rund, 318 Mich App 127, 137-138; 896 NW2d 76 (2016) (quotation 

marks and citations omitted). The Shah decision remains binding on this Court, and as explained 

in detail above, the assignments from Gordon to plaintiffs were valid and enforceable under 

Shah, despite the antiassignment clause. Therefore, under the assignments, plaintiffs had 

standing to file suit. Covenant, 500 Mich at 217 n 40. And Everest’s arguments depending on 

the reversal of Shah are not properly before this Court. “A party may not premise an action on a 

hypothetical controversy.” Van Buren Charter Twp v Visteon Corp, 319 Mich App 538, 554; 

904 NW2d 192 (2017).

Thus, the issue on appeal is whether the trial court abused its discretion by granting 

Gordon’s motion to intervene when plaintiffs had valid assignments from Gordon, allowing them 

to pursue claims against Everest. Id. This is a close determination. 

Legal actions must be prosecuted in the name of the real party in interest. MCL 

600.2041. “A real party in interest is one who is vested with the right of action on a given claim, 

 11 See footnote 7. 
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although the beneficial interest may be in another.” In re Beatrice Rottenberg Living Trust, 300 

Mich App 339, 356; 833 NW2d 384 (2013) (quotation marks and citation omitted). “The realparty-in-interest rule requir[es] that the claim be prosecuted by the party who by the substantive 

law in question owns the claim asserted. . . .” Id. (quotation marks and citation omitted). 

Under the no-fault act, PIP benefits are payable “to or for the benefit of an injured 

person.” MCL 500.3112. Covenant made clear that the claim for payment of PIP benefits under 

the no-fault act belongs to the injured party. Covenant, 500 Mich at 210-217. Because Gordon 

had a statutory claim to payment under the no-fault act, she had a cause of action for those 

benefits when Everest refused to pay the bills for the services rendered by plaintiffs. Id. 

Intervention of right is governed by MCR 2.209(A), which provides: 

(A) Intervention of Right. On timely application a person has a right to 

intervene in an action:

(1) when a Michigan statute or court rule confers an unconditional right to 

intervene;

(2) by stipulation of all the parties; or

(3) when the applicant claims an interest relating to the property or 

transaction which is the subject of the action and is so situated that the disposition 

of the action may as a practical matter impair or impede the applicant’s ability to 

protect that interest, unless the applicant’s interest is adequately represented by 

existing parties.

The trial court granted Gordon’s right to intervene under MCR 2.209(A)(3) for the 

reasons set forth in Gordon’s brief, relying on Botsford Gen Hosp v Citizens Ins Co, 195 Mich 

App 127; 489 NW2d 137 (1992). In Botsford, issued before Covenant, the medical provider 

hospital and the injured person filed suit against the no-fault insurer. Id. at 130. On appeal, the 

insurer argued that the hospital was barred from intervening under the statute of limitations 

provided in MCL 500.3145 (one year after the accident unless written notice of the injury was 

provided to the insurer within one year). Id. at 139-140. This Court determined that notice to 

the insurer was provided in the complaint, which was filed within the statutory period, and the 

hospital’s claims did not change or enlarge the injured person’s claims already in existence. Id. 

at 141. Thus, the trial court did not err in granting the hospital’s motion to intervene. Id. 

The trial court recognized the distinguishable facts between this case and Botsford, 

namely, that Gordon, the injured person, sought to intervene in the case between the medical 

provider and the insurer, whereas in Botsford, the medical provider sought to intervene in the 

case between the injured person and the insurer. Despite this difference, the trial court 

determined that Everest had notice of the claims through plaintiffs’ complaint, so Gordon was 

allowed to intervene. This was not an abuse of discretion.

Under MCR 2.209(A)(3), Gordon had an interest in the transaction because she had a 

right to claim benefits under the no-fault act, MCL 500.3112. Under her insurance policy with 

Everest, Everest was obligated to provide PIP benefits to Gordon. Plaintiffs provided healthcare 
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services to Gordon after she was injured in the car accident, so Gordon had an interest in 

plaintiffs’ action for reimbursement. Should Everest be found not responsible to reimburse 

plaintiffs, Gordon would still be liable for the payment of her medical bills, totaling $288,073.52. 

MCR 2.209 is to be “liberally construed to allow intervention where the applicant’s interests may 

be inadequately represented.” State Treasurer v Bences, 318 Mich App 146, 150; 896 NW2d 93 

(2016) (quotation marks and citations omitted). Thus, the trial court did not abuse its discretion 

by granting Gordon leave to intervene by right. 

Alternatively, Gordon argues on appeal that permissive intervention was appropriate 

despite the valid assignments to plaintiffs. Permissive intervention is governed by MCR 

2.209(B):

(B) Permissive Intervention. On timely application a person may 

intervene in an action

(1) when a Michigan statute or court rule confers a conditional right to 

intervene; or

(2) when an applicant’s claim or defense and the main action have a 

question of law or fact in common.

Under subsection (B), a court deciding a request for permissive intervention must “consider 

whether the intervention will unduly delay or prejudice the adjudication of the rights of the 

original parties.” MCR 2.209(B). 

Gordon’s action had the same factual basis as plaintiffs’ action, namely, the car accident 

that led to her injuries. Gordon’s action had the same question of law as plaintiffs’ action, 

namely, whether Everest was responsible to pay for the medical bills for treatment Gordon 

received for the injuries she sustained in the car accident. Permissive intervention was not 

considered by the trial court because it granted Gordon’s motion as intervention by right; 

however, Gordon’s intervention would not unduly delay or prejudice the adjudication of the 

rights of plaintiffs. 

B. RELATION BACK OF GORDON’S CLAIMS

Everest argues on appeal that the trial court erred in determining that Gordon’s claims 

relate back to the date of the original complaint filed by plaintiffs because Gordon did not seek to 

add new claims or defenses, but rather, Gordon is a new party, and the addition of new parties 

cannot relate back. We agree that Gordon’s claims do not relate back. 

The interpretation and application of a statute presents a question of law that this Court 

reviews de novo. Rambin v Allstate Ins Co, 495 Mich 316, 325; 852 NW2d 34 (2014). 

Specifically, “[w]hether the relation-back doctrine is applicable is a question of law that this 

Court reviews de novo.” Local Emergency Fin Assistance Loan Bd v Blackwell, 299 Mich App 

727, 740-741; 832 NW2d 401 (2013). 

MCR 2.118(D) provides in part:
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An amendment that adds a claim or a defense relates back to the date of the

original pleading if the claim or defense asserted in the amended pleading arose 

out of the conduct, transaction, or occurrence set forth, or attempted to be set 

forth, in the original pleading. 

The relation-back doctrine, however, does not apply to the addition of new parties. Miller v 

Chapman Contracting, 477 Mich 102, 105; 730 NW2d 462 (2007). There is also no relation 

back for supplemental pleadings. Shah, 324 Mich App at 203; Grist v Upjohn Co, 1 Mich App 

72, 84; 134 NW2d 358 (1965).

Gordon is clearly a different party than plaintiffs. She is not seeking to add new claims 

or defenses, MCR 2.118(D), but rather, assert the same claims as plaintiffs, but as a different 

party. Therefore, her claims would not relate back to the date of plaintiffs’ complaint. Because 

Gordon’s claims would not relate back to the date of the filing of the original complaint, she 

could only claim benefits dating one year back from the date that she filed her intervening 

complaint under MCL 500.3145, which was September 21, 2017. Because we affirm Gordon’s 

ability to intervene, her claims on remand are limited to this period of time.

IV. CONCLUSION

In Docket No. 340346, we reverse, and remand for further proceedings consistent with 

this opinion. We do not retain jurisdiction. 

In Docket No. 340349, we affirm in part, reverse in part, and remand for further 

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

/s/ Kathleen Jansen

/s/ Thomas C. Cameron

/s/ Jonathan Tukel