The Fall, Rise, and Uncertain Future of the No-Fault Act s One-Year-Back Limitation on Recovery of Benefits

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1 The Fall, Rise, and Uncertain Future of the No-Fault Act s One-Year-Back Limitation on Recovery of Benefits JAMES G. GROSS INTRODUCTION In 1973, the Michigan Legislature effected a sea change in motor vehicle insurance law when it enacted the Michigan No-Fault Accident Injury Reparations Act. 1 It provides, inter alia, unlimited lifetime allowable expenses, defined as all reasonable charges incurred for reasonably necessary products, services, and accommodations for an injured person s care, recovery, or rehabilitation. 2 This Article will focus on the benefits payable for home attendant care provided by family members to severely injured accident victims. Specifically, the Article will examine the development of the case law regarding the effect of Michigan Compiled Laws (MCL) section (1) on claims for such services provided years or decades before payment was requested: 3 (1) 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 James G. Gross is a member of Gross & Nemeth, P.L.C., in Detroit, Michigan. He practices appellate law primarily in the areas of insurance coverage and personal injury defense. In the past thirty-two years, he has litigated more than 500 appeals in the Michigan and federal courts. He previously served as the Court of Appeals Assistant Digest Editor, as a prehearing attorney, and as law clerk to Hon. Daniel F. Walsh. He is a Fellow of the American Academy of Appellate Lawyers and is currently a member of the State Bar of Michigan. American Judicature Society, Michigan Association for Justice, Association of Defense Trial Counsel, Michigan Defense Trial Counsel (past president), and the Defense Research Institute. He has been a member of the ICLE No-Fault faculty since MICH. COMP. LAWS (1979). 2. Id (1)(a). 3. Some member claims are for alleged underpayments. Conceptually, such claims are indistinguishable from those made by persons who were never paid because they never made claims for payment. In both cases, the amounts at issue are typically not claimed until the lawsuit is filed. See Cameron v. Auto Club Ins. Ass n, 687 N.W.2d 354 (Mich. Ct. App. 2004), aff d in part and vacated in part, 718 N.W.2d 784 (Mich. 2008).

2 640 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:639 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. 4 This issue involves the perfect storm of precedent and changing circumstances, which has resulted in the potential for the payment of hundreds of millions of dollars in decades-old claims despite the express statutory limitation on recovery. This Article will present the historical development of how home attendant claims are adjusted, the onset of claims for services rendered years before filing suit, the insurance industry s response to those suits, and the case law that has resulted. I. HISTORICAL BACKGROUND: CLAIMS ADJUSTING Although MCL section 3107(1)(a) does not expressly mention home attendant care, insurers soon recognized that it fit the definition of allowable expenses. A person incapacitated physically, mentally, or both will recover services ranging from mostly passive supervision 5 to intensive, around-the-clock medical monitoring. 6 The problem faced by claim adjusters was determining an appropriate amount of compensation. In response to this problem, a variety of approaches were adopted. In one case, a mother was paid at the same rate that she earned at her part-time job. 7 In another case, the insurer paid the daily rate for adult foster care, 8 while other claims adjusters paid hourly rates. 9 The development of a standard methodology was long coming, and it was not until the late 1990s that insurers systematically ascertained the amount to be paid by commercial agencies. In VanMarter v. American Fidelity Fire Insurance Company, 10 the court of appeals first recognized that family-provided, 4. Id (1) (emphasis added). 5. See, e.g., Motion for Summary Disposition Pursuant to MCR 2.116(C)(10) as to Counts II & IV app. C at 9, 39, Choate v. Auto Club Ins. Ass n, No NF (Mich. Cir. Ct.-3rd Feb. 12, 2009). 6. See, e.g., Transcript of Record at 46, Paquette v. State Farm Mutual Auto. Ins. Co. (Mich. Cir. Ct.-16th 2006) (No NO), appeal docketed, No (Mich. Sept. 1, 2009). 7. Appellees Brief on Appeal app. at 44b, 99b, 136b, Cooper v. Auto Club Ins. Ass n, 751 N.W.2d 443 (Mich. 2007) (No ). 8. Motion for Summary Disposition app. C at 40, 47, Choate v. Auto Club Ins. Ass n, No NF (Mich. Cir. Ct.-3rd Feb. 12, 2009). 9. Id. app. E at , N.W.2d 679 (Mich. Ct. App. 1982).

3 Summer 2010] THE NO-FAULT ACT S ONE-YEAR-BACK LIMITATION 641 home attendant care was an allowable expense. 11 However, the court failed to provide any direction as to how reasonable compensation was to be calculated. The first published decision which arguably provided such guidance was Manley v. DAIIE. 12 In Manley, the plaintiffs minor son was seriously injured in an auto accident, such that he was unable to care for himself. 13 The insurer paid the Oakland County Medical Care Facility $78 per day for room and board for the son. 14 Both the claimant and the insurer included all products, services, and accommodations within the meaning of room and board. 15 When the boy s parents took him home, they sought payment for their services in caring for him. 16 After the insurer refused to pay, the plaintiffs filed suit. 17 At trial, the plaintiffs sought $78 per day for their services. 18 The insurer introduced evidence that the son could be accommodated at a nursing home for $48 per day. 19 The jury awarded $30 per day. 20 After holding that services performed by close relatives could constitute allowable expenses within the meaning of MCL section (a), the court of appeals ordered a retrial on the ground that the parties both had used room and board to include some products, services, and accommodations which are not allowable expenses. 21 In reaching its decision, the court described the role of comparing rates, stating: We note that, while comparison to rates charged by institutions provides a valid method for determining whether the amount of an expense was reasonable and for placing a value on comparable services performed by Mr. and Mrs. Manley, the requirement that an allowable expense must have been incurred means that defendant cannot be required to pay more for a product, service, or accommodation than the price at which plaintiffs purchase it. Services performed by Mr. and Mrs. 11. Id. at 333. In Visconti v. DAIIE, 282 N.W.2d 360 (Mich. Ct. App. 1979), the court of appeals held that the insurer was required to pay $20 per day for the services of the injured person s spouse, who quit her job to care for him. Id. at 363. However, the opinion did not indicate whether the entitlement was for allowable expenses or for work loss N.W.2d 205 (Mich. Ct. App. 1983), vacated in part, 388 N.W.2d 216 (Mich. 1986). 13. Id. at Id. 15. Id. at See id. at See id. 18. See id. at Id. 20. Id. 21. Id. at

4 642 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:639 Manley which are allowable expenses under the rule previously stated are implicitly purchased by John at their reasonable market value. 22 Since Manley, it has been generally accepted that the benchmark for payment for home attendant care is the reasonable market value for the same or similar services. 23 However, the actual amounts are frequently negotiated by the insurance adjuster and the care provider. 24 II. THE ONSET OF THE NONPAYMENT/UNDERPAYMENT CLAIMS In the 1990s, claimants began filing suits alleging that they had been either underpaid or not paid at all for their home attendant care services. The claims went back years, sometimes decades. The legal linchpin to avoid the barring of claims by the one-year-back rule of MCL section 3145(1) was Geiger v. DAIIE. 25 In Geiger, the plaintiff was injured in an auto accident when he was sixteen years old, and the vast majority of his medical bills were paid by private insurers. 26 The defendant no-fault insurer was not notified of the accident until three years later. 27 The insurer denied the claim on the ground that it was barred by the one-year-back rule. 28 When the plaintiff filed suit, the insurer asserted the additional defense that the plaintiff failed to state a claim because the medical expenses were incurred by his mother who was legally responsible for them. 29 The trial court ruled in favor of the plaintiff. 30 On appeal, the court of appeals quoted the first sentence of MCL section : 31 Personal protection insurance benefits are payable to or for the benefit of an injured person or, in case of his death, to or for the benefit of his dependents.... If there is doubt about the proper person to receive the benefits or the proper apportionment 22. Id. at Currently, there is a dispute as to whether the proper measure is the amount that a commercial agency receives for providing the service (the agency rate ) or the amount that the individual providing the service receives from the agency (the individual rate ). The most recent authority indicates that it is the latter. Bonkowski v. Allstate Ins. Co., 761 N.W.2d 784, 791 (Mich. Ct. App. 2008). 24. See, e.g., Defendant-Appellee s Brief on Appeal app. at 148b, Cooper v. Auto Club Ins. Ass n, 751 N.W.2d 443 (Mich. 2007) (No ) N.W.2d 833 (Mich. Ct. App. 1982), overruled by Cameron v. Auto Club Ins. Ass n, 718 N.W.2d 784 (Mich. 2006). 26. Id. at Id. 28. Id. 29. Id. at Id. 31. Id.

5 Summer 2010] THE NO-FAULT ACT S ONE-YEAR-BACK LIMITATION 643 among the persons entitled thereto, the insurer, the claimant or any other interested person may apply to the circuit court for an appropriate order. The court may designate the payees and make an equitable apportionment, taking into account the relationship of the payees to the injured person and other factors as the court considers appropriate. 32 Although the Geiger panel did not comment on the statutory language it emphasized, the panel held that the cause of action always belongs to the injured person: This statute expressly confers a cause of action on the injured party to collect [personal injury protection (PIP)] benefits for expenses incurred as a result of his injury. We find no indication from the statute that the right to PIP benefits necessarily accrues to the person who is legally responsible for the expenses incurred as a result of the injury. 33 The court also addressed the authoritative holding that where a minor incurs a wrongful injury, the cause of action for the expenses incurred belongs to the parents. 34 The panel held that those cases were distinguishable because they involved common-law tort recovery, whereas in the case before it, the plaintiff s right to recovery was governed by the No-Fault Act. 35 The Geiger court then stated that even if the cause of action belonged to the parents, it was derivative of the injured minor s rights under the statute. 36 The foregoing holdings were important because they brought into play the minority/insanity tolling provision of the Revised Judicature Act (RJA): [I]f the person first entitled to make an entry or bring an action is under [eighteen] years of age, insane or imprisoned at the time his claim accrues, he or those claiming under him shall have [one] year after his disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run. 37 Although recognizing that the one-year-back rule was not a period of limitations, 38 [i]n order to advance the policy of RJA [section] 5851, the panel held that the tolling provision nullified the one-year-back rule. 39 In 32. MICH. COMP. LAWS (1979) (emphasis added). 33. Geiger, 318 N.W.2d at Id. at 835 (citing Gumienny v. Hess, 280 N.W. 809 (Mich. 1938) and Walter v. City of Flint, 199 N.W.2d 264 (Mich. Ct. App. 1972)). 35. Id. at Id. 37. MICH. COMP. LAWS (1) (1979) (emphasis added). 38. Geiger, 318 N.W.2d at Id. at 837.

6 644 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:639 doing so, Geiger rendered nugatory the provision that would have precluded the recovery of tens of millions of dollars in stale claims for underpayment or nonpayment of home attendant care benefits to family members. The number of such claims has dramatically increased in the past two decades. 40 III. THE INSURERS RESPONSE In the face of the foregoing case law developments, insurers focused on a 1993 change in the language of RJA section 5851(1) from an action to an action under this act. Understanding this tactic requires some background. In Holland v. Eaton, the Michigan Supreme Court held that the minority/insanity tolling provisions did not apply to statutes that provided their own limitations period. 41 However, in Lambert v. Calhoun, 42 upon which Geiger relied, 43 the court reached the opposite result. 44 The reason was that subsequent to Holland, the Legislature amended section 5851(1) so that instead of being limited to any of the actions mentioned in [the RJA,] it applied to any action. 45 In 1993, the Legislature once again amended section 5851(1) so that it only applied to an action under this act. 46 In Cameron v. Auto Club Insurance Association, the court of appeals held that the 1993 amendment rendered the provision inapplicable to the home attendant care claims because an action brought under the No-Fault Act is not an action under [the RJA]. 47 The Michigan Supreme Court analyzed the issue more directly in Cameron. It held that section 5851(1) does not apply to the one-year-back rule because it is not a statute of limitations, but rather a damage-limiting provision: 40. The author alone has litigated more than sixty of these cases in this decade. See, e.g., Adams v. Auto. Club Ins. Ass n, No NF (Mich. Cir. Apr. 1, 2003); Andrews v. Auto Club Ins. Ass n, No (E.D. Mich. Nov. 1, 2004); Apostolopoulos v. State Farm, No NF (Mich. Cir. Ct. Apr. 28, 2004); Armisted v. State Farm, No (E.D. Mich Jan. 16, 2007) N.W.2d 892, 895 (Mich. 1964), abrogated by Lambert v. Calhoun, 229 N.W.2d 332 (Mich. 1975) N.W.2d 332 (Mich. 1975), superseded by statute, MICH. COMP. LAWS (1) (1979), as recognized in Cameron v. Auto Club Ins. Ass n, 687 N.W.2d 354 (Mich. Ct. App. 2004). 43. Geiger, 318 N.W.2d at Lambert, 229 N.W.2d at Id. (citations omitted). 46. Cameron v. Auto Club Ins. Ass n, 687 N.W.2d 354, (Mich. Ct. App. 2004) (citing MICH. COMP. LAWS (1) (1979)) (emphasis omitted). 47. Id. at 358 (citation omitted).

7 Summer 2010] THE NO-FAULT ACT S ONE-YEAR-BACK LIMITATION 645 By its unambiguous terms, MCL [section] (1) concerns when a minor or person suffering from insanity may make the entry or bring the action. It does not pertain to the damages recoverable once an action has been brought. MCL [section] (1) then is irrelevant to the damages-limiting one-year-back provision of MCL [section] (1). Thus, to be clear, the minority/insanity tolling provision in MCL [section] (1) does not operate to toll the one-year-back rule of MCL [section] (1). 48 The court vacated the portion of the court of appeals opinion discussing the 1993 amendment. 49 In response to one of the dissents, the majority opinion articulated the underlying purpose of the one-year-back rule: As we have consistently noted, a dominant legislative purpose permeating throughout the no-fault act is to ensure that this mandatory coverage is affordable. Accordingly, declining to utilize the last antecedent rule to limit the one-year-back rule s application in the manner proposed by Justice Weaver is consistent with the Legislature s overarching commitment in the no-fault act, and its later amendments, to facilitating reasonable economies in the payment of benefits, thus causing the costs of this mandatory auto insurance to be more affordable. 50 IV. THE PLAINTIFFS RESPONSE: SILENT FRAUD When the court of appeals issued its opinion in Cameron, plaintiffs began filing amended complaints adding counts for silent fraud, fraud/misrepresentation, and violations of the Michigan Consumer Protection Act (MCPA). 51 The fraud/misrepresentation theory provides that by allegedly paying less than market rates for the home attendant care, insurers were misrepresenting the amount of benefits payable. 52 The silent-fraud theory was of general importance where the plaintiff had not even made a claim for home attendant care benefits. The argument was that the insurer had an affirmative obligation to apprise the claimant of all available benefits. The linchpin of that approach was the court of appeals 48. Cameron v. Auto Club Ins. Ass n, 718 N.W.2d 784, 789 (Mich. 2006). 49. Id. 50. Id. at (quoting Jarrad v. Integon Nat. Ins. Co., 696 N.W.2d 621, 627 (Mich. 2005)). 51. See, e.g., First Amended Complaint and Reliance on Prior Jury Demand, Converse v. Auto Club Group Ins. Co., No NO (Mich. Cir. Ct.-37th Feb. 11, 2005). 52. The case law development concerning fraud/misrepresentation and MCPA violations will be discussed infra.

8 646 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:639 opinion in Johnson v. State Farm Mutual Automobile Insurance Company. 53 In Johnson, the plaintiff s husband was killed in an auto accident while riding a motorcycle. 54 He was insured under a motorcycle policy issued by the defendant, which had also issued a policy for his automobile. 55 Although the plaintiff requested uninsured motorist coverage under the motorcycle policy, she did not demand payment of no-fault benefits until the suit was filed more than two years later. 56 The insurer invoked the one-year-back rule. 57 In response, the plaintiff cited Lewis v. DAIIE, 58 which held that the one-year-back rule was tolled between the time that the insured made a specific claim for benefits and the time that the insurer formally denied the claim. 59 However, the parties in Johnson agreed that no specific claim for benefits was submitted to the defendant prior to the commencement of [the lawsuit]. 60 The Johnson panel held that the information the plaintiff had provided in making the claim under the motorcycle policy was sufficiently specific to trigger a Lewis tolling. 61 The importance of this discussion was that the court created a new tolling rule: In the alternative, we would hold that, even if tolling under Lewis is not applicable to the case at bar, the one-year-back rule should nevertheless be tolled for that period from which defendant knew or reasonably should have known that plaintiff was entitled to benefits under the automobile policy until such time as defendant either formally and explicitly denied liability for benefits or affirmatively informed plaintiff that she might be entitled to benefits under the policy and requested that she file a formal claim of benefits under the policy. 62 The emphasized language created an affirmative duty to advise an insured of any entitlement to benefits of which the insurer reasonably should have known. The insurers response was to challenge the correctness of the Lewis decision on the ground that it was contrary to the express language of N.W.2d 420 (Mich. Ct. App. 1990), overruled by Devillers v. Auto Club Ins. Ass n, 702 N.W.2d 539 (Mich. 2005). 54. Id. at Id. 56. Id. 57. Id. at N.W.2d 167 (Mich. 1986), overruled by Devillers v. Auto Club Ins. Ass n, 702 N.W.2d 539 (Mich. 2005). 59. Id. at Johnson, 455 N.W.2d at Id. at Id. (emphasis added) (citation omitted).

9 Summer 2010] THE NO-FAULT ACT S ONE-YEAR-BACK LIMITATION 647 section 3145(1). That challenge was upheld by the Michigan Supreme Court in Devillers v. Auto Club Insurance Association. 63 The majority opinion relied heavily on the dissenting opinions of Justices Ryan and Coleman in Ford Motor Company. v. Lumbermens Mutual Casualty Company, 64 as well as on the dissenting opinions of Justices Brickley and Riley in Lewis. 65 The majority in Devillers concluded that Lewis and its progeny were wrongly decided[,] thereby overruling Johnson. 66 V. THE PLAINTIFFS RESPONSE: FRAUD/MISREPRESENTATION The insurers initial response to the fraud counts was to characterize them as action[s] for recovery of personal protection insurance benefits payable under [the No-Fault Act] within the meaning of section 3145(1). 67 Therefore, the insurers argued that they were governed by Cameron. 68 That argument was supported by the court of appeals opinion in Grant v. AAA Michigan/Wisconsin, Inc., 69 which applied the same analysis to a count brought under the MCPA: 70 As we stated in Grant II, under the clear terms of plaintiff s complaint, plaintiff s relief would be the no-fault benefits of which she was [allegedly] wrongfully deprived. All of plaintiff s losses were incurred more than one year before the filing of the complaint, and, therefore, no relief is available to plaintiff in light of MCL [section] (1), which clearly and unambiguously states that a claimant may not recover no-fault benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. Defendant was entitled to summary disposition, despite plaintiff s labeling count IV as an MCPA claim. The trial court erred in denying defendant s motion for summary disposition with respect to plaintiff s MCPA claim. 71 In Cooper v. Auto Club Insurance Association, 72 the court of appeals held that the one-year-back rule applied to the plaintiff s claim of fraud: N.W.2d 539, 542 (Mich. 2005) N.W.2d 320 (Mich. 1982). 65. Id. at , Devillers, 702 N.W.2d at 553 (emphasis added). 67. Defendant Auto Club Insurance Association s Motion for Partial Summary Disposition at 2-3 (Mich. Cir. Ct. Nov. 3, 2006); Cooper v. Auto Club Ins. Ass n, No NF (Mich. Cir. Ct. Oct. 19, 2004). 68. Id. at N.W.2d 498, 502 (Mich. Ct. App. 2006), appeal denied, 728 N.W.2d 227 (Mich. 2007). 70. The MCPA response to Cameron will be discussed infra Part VI. 71. Grant, 724 N.W.2d at 502 (citations omitted) (alteration in original) (emphasis added). 72. No (Mich. Ct. App. Nov. 21, 2006).

10 648 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:639 Although plaintiffs titled their claim as one for fraud, a [c]ourt is not bound by a plaintiff s choice of labels for her action because this would exalt form over substance. The damages plaintiffs seek here to recover are additional PIP benefits..... We conclude that plaintiffs amended complaint states a nofault action couched in fraud terms. 73 However, the Michigan Supreme Court reversed, holding: Because under MCL [section] (1) the one-yearback rule applies solely to no-fault actions, and because a fraud action is not a no-fault action, but, rather, constitutes an independent and distinct action for recovery of damages under the common law for losses incurred as a result of the insurer s fraudulent conduct, we hold that a common-law action for fraud is not subject to the one-year-back rule. 74 Nevertheless, the Michigan Supreme Court expressed skepticism that a fraud cause of action could be viable in the following types of cases: In particular, courts should carefully consider in this context whether insureds can satisfy the reliance factor. Insureds must show that any reliance on [the insurer s] representations was reasonable.... [I]nsureds will ordinarily be unable to establish the reliance element with regard to misrepresentations made during the claims handling and negotiation process, because during these processes the parties are in an obvious adversarial position and generally deal with each other at arm s length. 75 In Johnson v. Wausau Insurance Company, the court of appeals held that the plaintiff could not maintain a cause of action for fraud because she had the means to determine whether the insurer s representations were true by consulting an attorney. 76 Whether the facts of the Cooper case could support a finding of reasonable reliance is the subject of a pending application for leave to appeal to the Michigan Supreme Court Id. slip op. at 2 (quoting Johnston v. City of Livonia, 441 N.W.2d 41, 44 (Mich, Ct. App. 1989) (emphasis added) (alteration in original). 74. Cooper v. Auto Club Ins. Ass n, 751 N.W.2d 443, 453 (Mich. 2008). 75. Id. at (first alteration in original) (citation omitted) N.W.2d 755, 761 (Mich. Ct. App. 2009), appeal filed, No (Mich. 2009). 77. Cooper v. Auto Club Ins. Ass n, 751 N.W.2d 443 (Mich. 2008), sub nom. Strozewski v. Auto Club Ins. Ass n, No (Mich. July 9, 2009).

11 Summer 2010] THE NO-FAULT ACT S ONE-YEAR-BACK LIMITATION 649 VI. THE PLAINTIFFS RESPONSE: MCPA As noted above, plaintiffs also sought to avoid the one-year-back rule by pleading violations of the MCPA. In Grant v. AAA Michigan/Wisconsin, Inc., the court of appeals on remand held that the oneyear-back rule applied to such causes of action. 78 Because the MCPA count is a statutory rather than a common law cause of action, whether the Legislature intended section 3145(1) of the No-Fault Act to be circumvented by the simple artifice of casting the nofault claim as an MCPA claim is an open question. Grant may well survive Cooper. Whether that will matter, however, depends upon the new majority of the Michigan Supreme Court and its interpretation of the statute. VII. FULL CIRCLE: CAMERON REVISITED In Liptow v. State Farm Mutual Auto Insurance Company, 79 the Michigan Department of Community Health (MDCH) paid more than $1.5 million in medical benefits for the care of an auto accident victim. 80 MDCH sought reimbursement from the victim s no-fault insurer who interposed the one-year-back rule as a defense. 81 The MDCH responded by invoking MCL section (4): Actions brought in the name of the [S]tate of Michigan, the people of the [S]tate of Michigan, or any political subdivision of the [S]tate of Michigan, or in the name of any officer or otherwise for the benefit of the [S]tate of Michigan for the recovery of the cost of maintenance, care, and treatment of persons in hospitals, homes, schools, and other state institutions are not subject to the statute of limitations and may be brought at any time without limitation, the provisions of any statute notwithstanding. 82 The court held that under Cameron, section 3145(1) of the Act limited MDCH s recovery: We conclude that, by the plain import of this language, the Legislature intended to exempt the [S]tate from statutes of limitations when bringing an action to recover public funds. The language refers to statutes of limitations and provides that an 78. Grant v. A.A.A. Michigan/Wisconsin, Inc., 724 N.W.2d 498, 502 (Mich. Ct. App. 2006) N.W.2d 442 (Mich. Ct. App. 2006), cert. denied, 728 N.W.2d 417 (Mich. 2007). 80. Id. at Id. 82. Id. at 448 (quoting MICH. COMP. LAWS (4) (1979)) (emphasis in original).

12 650 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 87:639 action may be brought at any time. But the statute does not address damage limitation provisions or any other limiting provisions. In other words, like the minority tolling provision, MCL [section] (4) concerns the time during which the [S]tate may bring an action; it does not pertain to the damages recoverable once an action has been brought. 83 In University of Michigan Regents v. Titan Insurance Company, the court of appeals applied Liptow in a three-paragraph opinion. 84 The Michigan Supreme Court denied leave to appeal. 85 However, following the November 2008 judicial election, in which the Chief Justice and author of Cameron was defeated, the new majority granted reconsideration and directed the parties to brief whether Cameron and Liptow were correctly decided. 86 CONCLUSION The new Michigan Supreme Court majority seems determined to overrule Cameron. Doing so will undoubtedly proceed on the demonstrably false premise that to do so would protect the interests of minors and incompetents, 87 despite the fact that in all of these home attendant care cases, by hypothesis, the injured person had received quality care and will continue to receive it. The issue is not whether the caregiver should be paid. The issue is whether the competent adult caregiver the only person with an ultimate legal entitlement to the money should be able to recover for underpayments or nonpayments about which he or she did not complain for years or decades. An unfortunate victim in a permanent vegetative state who is receiving the necessary care obviously has no interest in the answer to that question. In addition to being bereft of any rational foundation, negating the one-year-back rule in these cases removes the fiscal fail-safe that the Legislature built into the system. In Shavers v. Kelley, 88 the Michigan Supreme Court expressly held that Michigan motorists are constitutionally entitled to have no-fault insurance made available on a fair and equitable basis. 89 A well-respected treatise notes, unless compulsory insurance is 83. Id. at 449 (second emphasis in original) (citing Cameron, 718 N.W.2d at 789). 84. Univ. of Mich. Regents v. Titan Ins. Co., No , slip op. at 1 (Mich. Ct. App. June 5, 2008) (per curiam), cert. granted, 769 N.W.2d 646 (Mich. 2009). 85. Univ. of Mich. Regents v. Titan Ins. Co., 769 N.W.2d 227 (Mich. 2008). 86. Univ. of Mich. Regents v. Titan Ins. Co., 769 N.W.2d 646 (Mich. 2009). 87. Once the court abandons the plain language of the statute, it will decide the issue on the basis of its view of sound public policy. See Cameron, 718 N.W.2d at 799 (Markman, J., concurring); Devillers v. Auto Club Ins. Ass n, 702 N.W.2d 539, (Mich. 2005) N.W.2d 72 (Mich. 1978). 89. Id. at 87.

13 Summer 2010] THE NO-FAULT ACT S ONE-YEAR-BACK LIMITATION 651 fairly priced and widely accessible, the statutory scheme violates due process protections of the Michigan Constitution. 90 The inflationary effect of bleeding hundreds of millions of dollars from the no-fault system is self-evident. Attendant care is a significant component of the Michigan Catastrophic Claims Association (MCCA) premium assessment, which this year rose by approximately $20 per insured vehicle to a total of $ Of that, almost 20% will address the $2.2 billion estimated deficit. 92 The MCCA Expected Future Costs by Reserve Component Estimate indicates that family attendant care constitutes 27.5% of expected future costs. 93 That is the largest single-cost component in the system. Ironically, the people most adversely affected will be those who some in the majority consider to be their constituency the common man. 94 As premiums and MCCA fees rise, those immediately adversely affected will most likely be the citizens of Detroit. According to recent figures, 17% of all drivers statewide are uninsured, up from 11% in However, in Detroit, 52% of all drivers are uninsured. 96 Upward pressure on premiums and fees will result in an even higher percentage of drivers being uninsured, and, therefore, ineligible for no-fault benefits if they are involved in accidents. 97 The one-year-back rule is intended to operate in precisely these circumstances. Overruling Cameron will have a negative effect on the affordability of mandatory no-fault coverage. If the super-legislature is indeed in session, let us hope that it legislates wisely. 90. GEORGE T. SINAS & WAYNE J. MILLER, MOTOR VEHICLE NO-FAULT LAW IN MICHIGAN 9 (Simco Publications 2008). See also Jarrad v. Integon Nat l Ins. Co., 696 N.W.2d 621, 627 (Mich. 2005); Cruz v. State Farm Mut. Auto. Ins. Co., 648 N.W.2d 591, 596 n.13 (Mich. 2002); State Farm Fire & Cas. Co. v. Old Republic Ins. Co., 644 N.W.2d 715, 719 & n.6 (Mich. 2002); O Donnell v. State Farm Mut. Auto. Ins. Co., 273 N.W.2d 829, 836 (Mich. 1979). 91. Press Release, Mich. Catastrophic Claims Ass n, MCCA Premium Assessment Set for (Mar. 30, 2009) (on file with author), available at Id. 93. Id. 94. Bankole Thompson, And Justice for All, MICHIGAN CHRONICLE, June 10 16, 2009, at A Jeff Gerritt, Car Insurance Rate Setting Hits Detroiters Unfairly, DETROIT FREE PRESS, August 27, 2009, at 21A. 96. Titan Trends, Uninsured Motorists in Michigan, NewsInfo/uninsuredmotoristsinMichigan.com. 97. See MICH. COMP. LAWS (b) (1979).