            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



MICHIGAN PAIN MANAGEMENT, assignee of                               UNPUBLISHED
LORRIE WIDEMAN,                                                     January 9, 2020

               Plaintiff-Appellant,

v                                                                   No. 345932
                                                                    Oakland Circuit Court
AMERICAN COUNTRY INSURANCE                                          LC No. 2018-164100-NF
COMPANY,

               Defendant-Appellee.


Before: CAMERON, P.J., and CAVANAGH and SHAPIRO, JJ.

PER CURIAM.

        In this action under the no-fault act, MCL 500.3101 et seq., plaintiff Michigan Pain
Management (MPM) is a healthcare provider seeking to recover payment for services rendered
to its patient. The trial court granted defendant American Country Insurance Company (ACIC)
summary disposition under MCR 2.116(C)(6) (another action between the same parties regarding
the same claim). For the reasons set forth in this opinion, we reverse.

                          I. FACTS AND PROCEDURAL HISTORY

       In September 2016, Lorrie Wideman was injured in a motor vehicle accident involving a
cab. In December 2016, MPM began providing medical care to Wideman and continued to do so
through the duration of the lower court proceedings. At each visit, Wideman assigned MPM in
writing her rights to collect payment of no-fault benefits for the medical services provided to her
by MPM.

       ACIC is the no-fault insurer responsible for payment of Wideman’s personal protection
insurance (PIP) benefits. In April 2017, Wideman filed suit in Wayne Circuit Court against
ACIC, asserting a claim for recovery of PIP benefits; the complaint also alleged counts of
negligence against the driver and the cab company. Wideman’s Wayne Circuit Court complaint
made no reference to the assignments to MPM.




                                                -1-
        In February 2018, while Wideman’s action was pending in Wayne Circuit Court, MPM
filed suit against ACIC in Oakland Circuit Court, seeking payment under the no-fault act for the
treatment it had provided to Wideman. The action was brought pursuant to the most-recent
assignment of no-fault benefits executed by Wideman, which was attached to the complaint
served on ACIC. Consistent with MCR 1.109(D)(2), the complaint stated that “[a] civil action
between other parties arising out of the transaction or occurrence alleged in the complaint” had
been filed in Wayne Circuit Court and provided the case number for Wideman’s action.

       In May 2018, Wideman’s Wayne Circuit Court case went to case evaluation. Wideman’s
case evaluation summary claimed unpaid PIP benefits for medical services provided to her by
MPM totaling $209,666.71. Wideman and ACIC each accepted the case evaluation award on
June 18, 2018.

        Days later, ACIC moved for summary disposition under MCR 2.116(C)(6) in the present
case. ACIC argued that MPM’s action was precluded because Wideman had already pursued
payment for MPM’s services in Wayne Circuit Court. In response, MPM argued that it was not
named in Wideman’s action and that, given the valid assignments, it was the sole real party in
interest with respect to no-fault benefits relating to MPM’s services.

       In August 2018, the trial court granted ACIC summary disposition. MPM’s motion for
reconsideration was denied and this appeal followed.
                                        II. ANALYSIS

        MPM argues that the trial court erred in granting ACIC summary disposition under MCR
2.116(C)(6). We agree.1 The court erroneously concluded that, because the two actions were
pursuing the same claim for benefits, the requirements of MCR 2.116(C)(6) were met. This,
however, overlooks the rule’s requirement that the moving and opposing parties to the present
suit each be named as a party in the other suit, a circumstance not present here.

        Summary disposition under MCR 2.116(C)(6) is appropriate where “[a]nother action has
been initiated between the same parties involving the same claim.” MCR 2.116(C)(6) “is a
codification of the former plea of abatement by prior action.” Fast Air, Inc v Knight, 235 Mich
App 541, 545; 599 NW2d 489 (1999). “The plea of abatement protected parties from being
harassed by new suits brought by the same plaintiff involving the same questions as those in




1
  We review de novo a trial court’s grant or denial of a motion for summary disposition. Fast
Air, Inc v Knight, 235 Mich App 541, 543; 599 NW2d 489 (1999). In deciding whether
summary disposition under MCR 2.116(C)(6) is appropriate, a court considers the pleadings,
affidavits, depositions, admissions, and other documentary evidence submitted by the parties.
MCR 2.116(G)(5). We review the interpretation of court rules de novo. Dextrom v Wexford Co,
287 Mich App 406, 416; 789 NW2d 211 (2010).



                                              -2-
pending[2] litigation.” Frohriep v Flanagan, 275 Mich App 456, 464; 739 NW2d 645, rev’d in
part on other grounds 480 Mich 962 (2007).

        MPM disputes that the “same parties” requirement is met in this case. Specifically, MPM
argues that MCR 2.116(C)(6) is inapplicable because: (1) MPM was not a party to Wideman’s
action, and (2) MPM and Wideman are not the same party. The trial court did not expressly
address this issue but cited JD Candler Roofing Co, Inc v Dickson, 149 Mich App 593, 598; 386
NW2d 605 (1986) for the proposition that “complete identity of the parties is not necessary”
under MCR 2.116(C)(6) and the related precept that “the two suits must be based on the same or
substantially the same cause of action.” The trial court erred by reading this caselaw to mean
that the plaintiff against whom dismissal is sought need not be a party to the other action. JD
Chandler addressed the scenario where the relevant plaintiff and defendant are parties to both
actions but the actions are not identical with respect to other parties. In that case, a roofer sued
one of two owners of a supermarket for breach of contract; a suit by the two owners on the same
issue was already pending. Summary disposition was appropriate under MCR 2.116(C)(6)
because both parties to the second-filed case were also parties to the first-filed case. We
concluded that it was immaterial that the other owner was not a party to the second suit. Id. at
598-599.

        Michigan Supreme Court caselaw confirms that the rule providing that complete identity
of the parties is not required refers to other parties, i.e., not the moving defendant and the
opposing plaintiff. The rule was first recognized by the Supreme Court in Pinel v Campsell, 190
Mich 347; 157 NW 271 (1916). In that case, not all of defendants from the first suit were named
in the second suit. See id. at 347-348. In discussing the plea of abatement, the Court observed:

       The principle is based upon the supposition that, if the first suit is so constituted
       as to be effective and available, and also to afford an ample remedy to the plaintiff
       in the second, the latter is unnecessary and should be dismissed. The positions of
       the respective parties on the record in the two suits, whether plaintiffs or
       defendants, is not material, if full relief can be had in the one first
       commenced. And if there were other parties in the first suit not included in the
       subsequent one, it would not necessarily prevent the pendency of the former
       action from being a defense to the latter, nor would the fact that the parties,
       plaintiff and defendant, were reversed in the two suits prevent the defense, if the



2
  We have said that “summary disposition cannot be granted under MCR 2.116(C)(6) unless
there is another action between the same parties involving the same claims currently initiated and
pending at the time of the decision regarding the motion for summary disposition.” Fast Air, 235
Mich App at 549 (emphasis added). As noted, the parties agree that ACIC and Wideman
accepted the case evaluation award in Wideman’s case. It is unclear whether ACIC was
dismissed from that case, although the register of actions suggests that it was and that the case
proceeded against one or both of the other party defendants. In any event, MPM does not argue
that MCR 2.116(C)(6) was inapplicable on the ground that the other action was not pending, and
so we will not address that issue.



                                                -3-
       issue in the two were the same, and the same relief attainable. [Id. at 352, quoting
       Emry v Chappell, 148 NC 327; 62 SE 411, 412 (1908) (quotation marks and
       citations omitted; emphasis added).]

Accordingly, the Court held that the second case should be abated as the rights of the two parties
in question would be fully addressed in the first. Id. at 353.

        The Court reached the same result in Chapple v Nat’l Hardwood Co, 234 Mich 296, 298;
207 NW 888 (1926), in which the second action “add[ed] new defendants [and] subtract[ed]
some of the old ones . . . .” In holding that dismissal was proper under the statute codifying the
plea of abatement, the Court relied on Pinel as well as treatises and out-of-state caselaw adopting
the view expressed therein. The Court observed in part the following guidance from a treatise:

               “But a suit will be abated on the ground that another suit is pending in the
       same jurisdiction where the parties plaintiff are the same in both suits and the
       parties defendant in the second suit are parties defendant in the former suit,
       notwithstanding that there are additional parties defendant in the former suit,
       provided, of course, each action is predicated upon substantially the same facts as
       respects the defendants named in both.” [Id. at 298-299, quoting 1 Ruling Case
       Law 15 (emphasis added).]

        Thus, longstanding caselaw establishes that the term “same parties” in MCR 2.116(C)(6)
refers to the party filing the motion and the party responding to it. Those are the relevant parties
that must appear in both actions. The rule that complete identity of the parties is not required
only comes into play when one or both of the actions contains an additional party not found in
the other. A contrary interpretation of MCR 2.116(C)(6)—where the only requirement is that the
claims be substantially similar—would render the term “same parties” mere surplusage. See
Casa Bella Landscaping, LLC v Lee, 315 Mich App 506, 510; 890 NW2d 875 (2016)
(“Court rules, like statutes, must be read to give every word effect and to avoid an interpretation
that would render any part of the [court rule] surplusage or nugatory.”) (quotation marks and
citation omitted; alteration by Casa Bell Landscaping). But the Supreme Court conditioned
MCR 2.116(C)(6)’s applicability on the other action involving the same parties in addition to the
same claim, and we must apply “the rule’s plain and unambiguous language as written.” Spine
Specialists of Mich, PC v State Farm Mut Auto Ins Co, 317 Mich App 497, 501; 894 NW2d 749
(2016).

        Returning to the case at hand, MPM was not a party to Wideman’s action against ACIC
in Wayne Circuit Court. The trial court cited the familiar rule that “an assignee stands in the
shoes of the assignor and acquires the same rights as the assignor possessed.” Prof Rehab Assoc
v State Farm Mut Auto Ins Co, 228 Mich App 167, 177; 577 NW2d 909 (1998). But it does not
follow that, after the assignment, an assignee and assignor are treated as the same party with
respect to the exercise of those rights. To the contrary, “an assignee of a cause of action becomes
the real party in interest with respect to that cause of action, inasmuch as the assignment vests in
the assignee all rights previously held by the assignor.” Cannon Twp v Rockford Pub Sch, 311
Mich App 403, 412; 875 NW2d 242 (2015) (emphasis added). In other words, after execution of
the assignment, only the assignee may enforce the acquired rights.



                                                -4-
         We also conclude that the trial court made an erroneous finding of fact by concluding that
Wideman’s assignments to MPM were all executed after Wideman filed her suit against ACIC
and were therefore “ineffective.” In fact, the record contains several assignments that preceded
Wideman’s suit. Therefore, we need not address whether any post-suit assignments were
effective. Given our ruling, we also need not address MPM’s arguments that the two suits do not
concern the “same claim” and that the trial court erred in relying on the Wideman’s case
evaluation summary in concluding otherwise. Even if the two suits involve the same claim,
summary disposition under MCR 2.116(C)(6) was erroneous when MPM was not a party to the
first action.

        We also note that the no-fault act suggests that the insurer should be held liable to the
health care provider under the circumstances presented by this case. Section 3112 of the no-fault
act provides in part:

       Payment by an insurer in good faith of personal protection insurance benefits, to
       or for the benefit of a person who it believes is entitled to the benefits, discharges
       the insurer’s liability to the extent of the payments unless the insurer has been
       notified in writing of the claim of some other person. If there is doubt about the
       proper person to receive the benefits or the proper apportionment among the
       persons entitled to the benefits, the insurer, the claimant, or any other interested
       person may apply to the circuit court for an appropriate order. [MCL 500.3112
       (emphasis added).]

Under this provision, “if the insurer has notice in writing of a third party’s claim, then the insurer
cannot discharge its liability to the third party simply by settling with its insured.” Covenant
Med Ctr Inc v State Farm Mut Auto Ins Co, 313 Mich App 50, 53; 880 NW2d 294 (2015), rev’d
on other grounds 500 Mich 191.3 Here, ACIC had written notice of MPM’s claim given the
complaint filed in Oakland Circuit Court. Despite being aware of that claim, ACIC chose to
settle Wideman’s claim for PIP benefits. Pursuant to MCL 500.3112, that the settlement had no
effect on MPM’s claim.

      In any event, the only question before us is whether the trial court erred in granting ACIC
summary disposition under MCR 2.116(C)(6). For the reasons stated in this opinion, we hold
that MCR 2.116(C)(6) does not apply when the opposing plaintiff is not a party to other action.
Because MPM was not a party to Wideman’s action, the grant of summary disposition under
MCR 2.116(C)(6) was erroneous.




3
  In Covenant, the Supreme Court determined that MCL 500.3112 did not grant healthcare
providers a cause of action under the no-fault act, but the Court did not disagree with our
explication of the statute. See Covenant, 500 Mich at 210-211.



                                                 -5-
        Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.

                                                        /s/ Thomas C. Cameron
                                                        /s/ Mark J. Cavanagh
                                                        /s/ Douglas B. Shapiro




                                            -6-
