                           STATE OF MICHIGAN

                           COURT OF APPEALS



HENRY FORD MACOMB,                                                   UNPUBLISHED
                                                                     September 20, 2016
              Plaintiff-Appellee,

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

              Defendant-Appellant.


Before: BECKERING, P.J., and CAVANAGH and GADOLA, JJ.

GADOLA, J. (dissenting).

       I respectfully dissent. I believe the trial court erred by denying defendant’s motion for
summary disposition because the one-year-back rule of MCL 500.3145(1) precludes plaintiff’s
recovery for losses incurred before August 4, 2013.1

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

               An action for recovery of personal protection insurance 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 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. [MCL 500.3145(1)
       (emphasis added).]


1
  This Court reviews de novo a trial court’s ruling on a motion for summary disposition. Walsh v
Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). Similarly, we review questions of
statutory interpretation de novo. Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, 525-526;
697 NW2d 895 (2005).


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Accordingly, MCL 500.3145(1) contains two limitations on the time for filing a lawsuit and one
limitation on the damages a claimant may recover. Joseph v Auto Club Ins Ass’n, 491 Mich 200,
207; 815 NW2d 412 (2012). Thus, although a no-fault action to recover personal protection
insurance (PIP) benefits may be filed more than one year after the accident or a particular loss
has been incurred, the one-year-back rule “limits recovery in that action to those losses incurred
within the one year preceding the filing of the action.” Devillers v Auto Club Ins Ass’n, 473
Mich 562, 574; 702 NW2d 539 (2005).

        Statutory language, including the one-year-back rule of MCL 500.3145(1), must be
enforced according to its plain and ordinary meaning. Id. at 582. When statutory language is
unambiguous, reviewing courts presume that the Legislature intended the meaning that is clearly
expressed, and further construction is neither required nor permitted. Joseph, 491 Mich at 205.
The one-year-back rule of “MCL 500.3145(1) . . . is clear” that “[d]amages are only allowed for
one year back from the date the lawsuit is filed.” Cameron v Auto Club Ins Ass’n, 476 Mich 55,
63; 718 NW2d 784 (2006).2 Therefore, a plain reading of MCL 500.3145(1) compels me to
conclude that, because plaintiff did not file its complaint until August 4, 2014, its recovery was
limited to losses incurred on or after August 4, 2013, i.e., one year back from the date the lawsuit
was filed. See Devillers, 473 Mich at 565-566 (holding that the one-year-back rule precluded a
plaintiff who filed a complaint on November 12, 2002, from recovering damages for losses
incurred before November 12, 2001); Joseph, 491 Mich at 222 (holding that a plaintiff who filed
her complaint on February 27, 2009, was limited to recovering damages for losses “incurred on
or after February 27, 2008”).

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

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

      Additionally, Article 3 of the Michigan Constitution states that “[n]o person exercising
powers of one branch shall exercise powers properly belonging to another branch except as


2
 Cameron was overruled by Regents of Univ of Mich v Titan Ins Co, 487 Mich 289, 292-293;
791 NW2d 897 (2010), but was then reinstated by Joseph, 491 Mich at 203-204.


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expressly provided in this constitution.” Const 1963, art 3, § 2; see Zdrojewski v Murphy, 254
Mich App 50, 81; 657 NW2d 721 (2002). The Constitution grants our Supreme Court authority
to make rules that “establish, modify, amend and simplify the practice and procedure in all courts
of this state.” Const 1963, art 6, § 5. However, that authority only extends to matters of practice
and procedure because the Legislature, not the courts, has authority to establish substantive law.
McDougall v Schanz, 461 Mich 15, 26-27; 597 NW2d 148 (1999); Zdrojewski, 254 Mich App at
81.

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

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

                The one-year-back rule codifies an integral part of the legislative
       compromise that is the no-fault act . . . . Given that Michigan is the only state
       with a no-fault automobile-injury reparations scheme with mandatory, unlimited,
       lifetime medical benefits, the Legislature adopted a unique approach to defining
       the temporal limitations for filing suit without allowing open-ended liability or
       time-barring claims before they accrue. The Legislature addressed this problem
       by enacting the one-year-back rule, which limits recovery to losses incurred
       within one year before suit was filed. Thus, the creation of MCL 500.3145(1)
       was the Legislature’s reasonable and simple approach to resolving the problem of
       allowing a reasonable amount of time for pursuing a claim while protecting the
       fiscal integrity of the no-fault system.

       The one-year-back rule of MCL 500.3145(1) concerns a matter of substantive law, rather
than procedure. In my opinion, application of MCR 1.108 in the manner proposed by the

                                                -3-
majority would violate the separation of powers doctrine because it would apply the court rule in
a way that impermissibly modifies the plain language of the substantive law. See McDougall,
461 Mich at 27 (“[The Supreme Court] is not authorized to enact court rules that establish,
abrogate, or modify the substantive law.”); see also Jones, 497 Mich at 166 (“[C]ourts may not
promulgate procedural rules contrary to [substantive law], but are instead required to adhere to
legislative dictates.”). Considering the plain language of MCL 500.3145(1), I would hold that
the one-year-back rule precludes plaintiff’s recovery for losses incurred before August 4, 2013,
or one year before it filed its lawsuit on August 4, 2014.



                                                           /s/ Michael F. Gadola




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