Yerkovich v. AAA

585 N.W.2d 318, 231 Mich. App. 54
CourtMichigan Court of Appeals
DecidedNovember 2, 1998
DocketDocket 198307
StatusPublished
Cited by15 cases

This text of 585 N.W.2d 318 (Yerkovich v. AAA) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yerkovich v. AAA, 585 N.W.2d 318, 231 Mich. App. 54 (Mich. Ct. App. 1998).

Opinions

McDonald, J.

Defendant AAA appeals as of right from the trial court’s order granting motions for sum[58]*58mary disposition pursuant to MCR 2.116(C)(10) in favor of plaintiff and defendant Michigan United Food and Commercial Workers Unions and Food Employers Health and Welfare Fund (fund). We affirm.

Plaintiffs minor daughter suffered injuries in an automobile accident when the driver of the vehicle in which she was riding negligently collided with another vehicle. At the time of the accident, plaintiff was a participant in the fund. Defendant fund is a self-funded employee welfare benefit plan created and administered pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 USC 1001 et seq. Plaintiff also had a no-fault policy issued by defendant AAA at the time of the accident.

Plaintiff filed this action on behalf of her minor daughter against both defendants, seeking payment of medical expenses. The fund had initially denied coverage, claiming plaintiff had failed to execute a subrogation agreement as required by the policy’s subrogation clause. However, plaintiff eventually executed the required “Subrogation Agreement and Assignment” and the fund paid $6,832 in medical expense benefits. AAA also denied coverage, claiming plaintiff’s policy contained a coordination of benefits (COB) clause which made the fund primarily responsible for medical expenses from the accident. Plaintiff also filed a negligence claim against the driver of the vehicle in which her daughter was riding at the time of the accident, which was settled for $20,000.

Plaintiff and the fund each filed motions for summary disposition in the trial court, essentially advancing the same position. The fund argued that pursuant to the plan, plaintiff was required to reimburse the fund the $6,832 it had paid for medical expenses from [59]*59her third-party tort recovery. Plaintiff and the fund agreed that if such reimbursement were required, it would result in plaintiffs paying her own medical expenses, contrary to the provisions of the no-fault act. Plaintiff and the fund contended defendant AAA should be held responsible for the medical expenses. AAA countered that the language of the subrogation agreement between plaintiff and defendant fund did not support a right to reimbursement in this case. AAA argued the language of the agreement limited reimbursement to situations where plaintiff recovered medical benefits from a third-party suit. Because the no-fault act precludes such causes of action, AAA argued, plaintiff was not required to reimburse the fund. The trial court granted the motions for summary disposition and ordered AAA to repay plaintiff any sums she paid to reimburse the fund.

AAA argues the trial court erred in granting the summary disposition motions. When determining whether the trial court properly granted summary disposition pursuant to MCR 2.116(C)(10), we review the record de novo to determine whether the prevailing parties were entitled to the judgment as a matter of law. Westfield Cos v Grand Valley Health Plan, 224 Mich App 385, 387-388; 568 NW2d 854 (1997).

Initially, we comment on the effect of the COB clauses in this case. The parties do not dispute AAA’s claim that plaintiff’s no-fault policy is coordinated pursuant to MCL 500.3109a; MSA 24.13109(1). Section 3109a of the no-fault act requires insurers to offer insureds the option of coordinating their personal protection insurance benefits with their other health and accident coverage and paying a corre[60]*60spondingly lowered premium rate.1 Westfield, supra at 388. When the insured elects this option, the health insurer becomes primarily responsible to pay for medical expenses resulting from injuries sustained in automobile accidents, even when the health insurance policy also contains a COB clause. Federal Kemper Ins Co, Inc v Health Ins Administration, Inc, 424 Mich 537; 383 NW2d 590 (1986).2 However, when the health insurance plan at issue is established pursuant to the ERISA, an unambiguous COB clause in the ERISA plan controls and the no-fault insurer is primary. Auto Club Ins Ass’n v Frederick & Herrud, Inc (After Remand), 443 Mich 358, 387; 505 NW2d 820 (1993).

In this case, neither plaintiff nor defendant fund argues the plan contained an unambiguous COB clause that rendered AAA primarily liable for the medical expenses. The plan does contain a “Coordination of Benefits” clause, but the clause does not appear to make the plan secondary to other insurance. Instead, the clause provides, in relevant part:

[61]*61(1) Coordination of Benefits means that if the covered person, i.e., employee or dependent, is covered under more than one Plan, the total amount payable under this Plan, when added to the amount or value of the benefits or services provided by all Other Plans, will not exceed the amount of the Allowed Expense which is incurred. In no event will the amount payable under this Plan be more than what would be paid if there were no Other Plan. Coordination of Benefits provisions will be applied on a calendar year basis. [Emphasis in original.]

Accordingly, this case is not controlled by Frederick & Herrud. If the outcome of this case depended on the cob clauses alone, it appears the fund would be the primary insurer and AAA would be the secondary insurer. Allstate Ins Co v American Medical Security, Inc, 975 F Supp 1005, 1008 (ED Mich, 1997).

However, the issue in this case is the effect of the “Subrogation Agreement and Assignment” plaintiff signed. The trial court found this agreement obligates plaintiff to repay the fund the $6,832 it paid in medical expenses. Defendant AAA argues the fund is not entitled to reimbursement under the agreement. We agree with the trial court’s conclusion.

The “Subrogation Agreement and Assignment” provides, in relevant part:

I have made a claim to the fund for medical and/or hospital and/or disability benefits as the result of an accident or injury involving a third party who may be liable.
I agree, for myself and on behalf of my dependents, that if the plan advances benefits to or on behalf of me or my dependents I will repay the plan in full any sums advanced to cover such expenses from any judgement [sic] or settlement I or my dependents receive.
[62]*62I agree that the fund shall be subrogated in the amount of any sums paid by the fund to my and/or my dependents rights of recovery against the third party. All such sums recovered, by suit, settlement, or otherwise, shah be paid over to the fund. [Emphasis added.]

AAA argues the trial court did not interpret the language of the agreement because it erroneously assumed the plan’s trustees had interpreted the language and erroneously concluded that it was required to defer to that interpretation of the agreement, unless it found the trustees had acted arbitrarily and capriciously. Assuming AAA is correct, we review the language of the agreement de novo. Western & Southern Life Ins Co v Wall, 903 F Supp 1155, 1159 (ED Mich, 1995).

The reimbursement provisions of the agreement do not limit the fund’s right to repayment to situations where the insured recovers economic damages from a third party.

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Yerkovich v. AAA
585 N.W.2d 318 (Michigan Court of Appeals, 1998)

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Bluebook (online)
585 N.W.2d 318, 231 Mich. App. 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yerkovich-v-aaa-michctapp-1998.