          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MICHIGAN HEAD & SPINE INSTITUTE, PC,                            UNPUBLISHED
and VHS OF MICHIGAN, INC., doing business as                    December 17, 2019
DETROIT MEDICAL CENTER,

            Plaintiffs,

and

JESSE GARRETT,

            Intervening Plaintiff-Appellant,

and

MEDCARE INC., doing business as SPINAL
RECOVERY CENTER,

            Intervening Plaintiff,

v                                                               No. 344955
                                                                Wayne County Circuit Court
MICHIGAN ASSIGNED CLAIMS PLAN and                               LC No. 16-014894-NF
UNNAMED ASSIGNEE OF THE MACP,

            Defendants-Appellees.


MICHIGAN HEAD & SPINE INSTITUTE, PC,

            Plaintiff-Appellant,

and

VHS OF MICHIGAN, INC., doing business as
DETROIT MEDICAL CENTER,

            Plaintiff,


                                               -1-
and

JESSE GARRETT, and MEDCARE, INC., doing
business as SPINAL RECOVERY CENTER,

              Intervening Plaintiffs,

v                                                            No. 345010
                                                             Wayne County Circuit Court
MICHIGAN ASSIGNED CLAIMS PLAN and                            LC No. 16-014894-NF
UNNAMED ASSIGNEE OF THE MACP,

              Defendants-Appellees.


MICHIGAN HEAD & SPINE INSTITUTE, PC,

              Plaintiff,

and

VHS OF MICHIGAN, INC., doing business as
DETROIT MEDICAL CENTER,

              Plaintiff-Appellant,

and

JESSE GARRETT, and MEDCARE, INC., doing
business as SPINAL RECOVERY CENTER,

              Intervening Plaintiffs,

v                                                            No. 345012
                                                             Wayne County Circuit Court
MICHIGAN ASSIGNED CLAIMS PLAN and                            LC No. 16-014894-NF
UNNAMED ASSIGNEE OF THE MACP,

              Defendants-Appellees.


Before: BECKERING, P.J., and BORRELLO and M. J. KELLY, JJ.

PER CURIAM.



                                           -2-
        In this no-fault case, plaintiffs Michigan Head & Spine Institute, PC (MHSI), and VHS of
Michigan, Inc., doing business as Detroit Medical Center (DMC), as well as intervening plaintiff
Jesse Garrett, appeal as of right and challenge the trial court’s dismissal of their claims against
defendants Michigan Assigned Claims Plan (MACP), which is maintained by the Michigan
Automobile Insurance Placement Facility (MAIPF), and an unnamed insurer to whom it was
anticipated MAIPF would assign Garrett’s claim. 1 MHSI, DMC, and Garrett also challenge the
trial court’s refusal to allow them an opportunity to amend their complaints. For the reasons set
forth in this opinion, we reverse and remand for further proceedings.

                                       I. BACKGROUND

        MHSI and DMC initiated this action in a jointly filed one-count complaint alleging that
they were entitled under the no-fault act, MCL 500.3101 et seq., to recover for medical services
and accommodations provided to Garrett to treat injuries he suffered in a motor vehicle collision
and that MAIPF was required to “assign a carrier to provide No-Fault benefits to a claimant if no
personal protection insurance applicable to the injury is available” but “breached its statutory
obligation to assign an insurer carrier to process claims arising out of the September 6, 2016
motor vehicle accident, as provided by MCL 500.3174.” MHSI and DMC also named the yet-to-
be-assigned insurer as a defendant. Garrett successfully moved to intervene and, in his
intervening complaint, alleged in relevant part that MAIPF “has failed to assign Intervening
Plaintiff’s claim for no-fault benefits to an insurer, violating its duties under MCL 500.3171,
MCL 500.3172, MCL 500.3173, MCL 500.3174, and MCL 500.3175.” Garrett likewise alleged
that MAIPF was “liable to Intervening Plaintiff for the claimed benefits should [it] continue to
violate its statutory duty to assign Intervening Plaintiff’s claim to an insurer.” Like MHSI and
DMC, Garrett also named the yet-to-be-assigned insurer as a defendant. MAIPF answered the
plaintiff’s complaint, but did not timely answer Garrett’s intervening complaint.

        As the case progressed, MHSI and DMC moved to compel the assignment of an insurer,
but the trial court denied the motion without prejudice.

       MHSI and DMC subsequently filed an “emergency” motion for leave to amend their
complaint, seeking to allege that they possessed standing by assignment in light of Covenant
Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191; 895 NW2d 490 (2017). In
Covenant, our Supreme Court held that the no-fault act did not provide healthcare providers with
a statutory direct cause of action against no-fault insurers to recover personal protection
insurance (PIP) benefits. Id. at 196. The Covenant Court also stated, however, that its holding
was “not intended to alter an insured’s ability to assign his or her right to past or presently due


1
  MAIPF maintains the MACP. See MCL 500.3171(2) (“The Michigan automobile insurance
placement facility shall adopt and maintain an assigned claims plan . . . .”). Although all
plaintiffs named MACP as the defendant in this matter, MAIPF asserts that it, not the MACP, is
the “entity with the capacity to be sued and, for all intents and purposes, should be considered
the actual Defendant in this case.” Accordingly, we will refer to MAIPF as the relevant
defendant and to the MACP to the extent it is necessary to address the plan itself.


                                                -3-
benefits to a healthcare provider.” Id. at 217 n 40. MAIPF opposed the motion for leave to
amend, contending that the “emergency” motion was prejudicial because of “undue delay” and
that the amendment would be “futile.” With respect to delay, MAIPF argued that the parties had
been litigating the case for approximately one year by the time the motion to amend was filed on
December 1, 2017, and that the assignments at issue were executed in September 2016, February
2017, and June 2017—15 months, 10 months, and 6 months, respectively, before the
“emergency” motion was filed. With respect to futility, MAIPF argued that amending the
complaint would be futile because it was entitled to have its pending motion for summary
disposition, which was premised on the ground that Garrett and his mother had made material
misrepresentations of fact related to the case, granted in its favor. The trial court denied the
emergency motion for leave to amend, without prejudice, finding that the motion was “too late,
prejudicial and futile.”2 The court offered no further explanation of this ruling. At the same
hearing, the trial court stated that it would take the pending motion for summary disposition
under advisement.3

        MAIPF subsequently filed additional motions for summary disposition, including one
under MCR 2.116(C)(8) that is relevant to the issues raised in this appeal. In this (C)(8) motion,
MAIPF first argued that MHSI’s and DMC’s claims failed to state a claim because the holding in
Covenant prohibited healthcare providers from proceeding with a direct action against a no-fault
insurer. MAIPF next argued that MHSI and DMC had also failed to state a claim for PIP
benefits against it because (1) MAIPF was only created by statute to adopt and maintain an
assigned claims plan, (2) MAIPF was not an insurer and its function was limited to reviewing
and assigning eligible claims to an insurer that would be responsible for providing benefits
required under the no-fault act, and (3) MAIPF therefore could not be liable as a matter of law
for paying insurance benefits. Finally, MAIPF argued that its second argument (that it could not
be liable for paying PIP benefits) applied with equal force to Garrett, justifying dismissal of his
claim as well.

         While the above (C)(8) motion was pending, Garrett requested, and the court clerk
entered, a default against MAIPF on Garrett’s intervening complaint based on MAIPF’s failure
to file an answer. The default was entered on March 26, 2018. MAIPF then filed a responsive
pleading the next day. Three days later, the parties stipulated to set aside the default and the
court entered an order to that effect. Once the default was set aside, MAIPF refiled its answer
and affirmative defenses on April 9, 2018.

        Meanwhile, MHSI and DMC opposed MAIPF’s (C)(8) motion, arguing first that their
claims could proceed based on a valid assignments of benefits received from Garrett and that
leave to amend their complaint should be granted to reflect that their standing was based on an
assignment. MHSI and DMC, citing MCR 2.116(I)(5), argued that granting leave to amend was


2
 MHSI and DMC filed an application for leave to appeal that decision in this Court, which was
denied. See Mich Head & Spine Institute PC v Mich Assigned Claims Plan, unpublished order
of the Court of Appeals, entered April 6, 2018 (Docket No. 342537).
3
    This summary disposition motion is not at issue in this appeal and will not be further discussed.


                                                  -4-
warranted. MHSI and DMC argued that MAIPF would not be prejudiced because the
amendment would only clarify their standing and would not otherwise change the nature of the
underlying claims at issue in the lawsuit. Next, with respect to MAIPF’s claim that it could not
be liable for paying insurance benefits as a matter of law, MHSI and DMC argued that MCL
500.3172 specifically provides for claimants to obtain PIP benefits through the assigned claims
plan if no personal protection insurance is applicable to the injury. MHSI and DMC further
argued that the MACP Plan of Operations provided that MAIPF was ultimately responsible for
indemnifying all losses and liabilities related to benefits paid under MACP and that the MAIPF
could, as it did in this case, elect to defend, pay, or otherwise dispose of any claim at its own cost
instead of assigning the claim. MHSI and DMC also argued that because MAIPF had refused to
assign an insurer, there was no other defendant against which to timely file an action.

         Garrett’s arguments were largely the same with respect to opposing MAIPF’s argument
that it could not be held liable for PIP benefits as a matter of law. Garrett further argued that his
complaint alleged that MAIPF had breached its statutory duty to assign his claim. Finally,
Garrett argued that, in the alternative, he should be granted leave to amend his complaint to add a
claim requiring MAIPF to assign an insurer.

        In reply, MAIPF asserted that MHSI and DMC’s arguments with respect to an
assignment-based claim were nothing more than an attempt to undermine the trial court’s earlier
decision to deny them an opportunity to amend their pleading. MAIPF argued that granting
leave to amend would be prejudicial to it solely because MHSI and DMC could have moved
earlier than they did for leave to amend based on the assignments that they had long possessed.
MAIPF also argued that it could not be held liable for monetary damages because it only had an
obligation to reimburse servicing insurance carriers, not claimants, and had nonetheless already
determined that Garrett was “obviously ineligible” for PIP benefits. Additionally, MAIPF
admitted in its reply brief that even if summary disposition were granted on the ground that it
could not be monetarily liable for paying benefits, Garrett would still be permitted to proceed in
the action with attempting to require MAIPF to assign his claim because Garrett had sought this
relief in his complaint. Specifically, MAIPF stated, “If the Court grants this Motion as
previously done in prior cases, Plaintiff would still have a cause of action for assignment as pled
in the Complaint and permitted by the statute.”

        The trial court granted summary disposition to MAIPF under MCR 2.116(C)(8). With
respect to the Covenant issue, counsel for MHSI and DMC argued at the hearing that they had
waited to move to amend because they “wanted an insurance company in the case so that we
could do one amendment as to both . . . an insurance company and allege the assignment.”
Counsel further argued that the previous denial of the motion for leave to amend had been
without prejudice. Additionally, counsel argued that MAIPF inexcusably delayed in filing a
(C)(8) motion based on Covenant, that there was no actual prejudice to MAIPF if the court
permitted the amendment, and delay alone was insufficient to justify denying leave to amend in
the absence of such prejudice. The trial court granted MAIPF’s motion for summary disposition
under (C)(8) with respect to MHSI and DMC pursuant to Covenant. The trial court confirmed
that it had already denied leave for MHSI and DMC to amend their complaint to reflect an
assignment-based theory of standing because it was “late.” The trial court also explained that its
summary disposition ruling was based on the court being “consistent with what it did.”


                                                 -5-
Additionally, the trial court again denied the request of MHSI and DMC to amend their
complaint to account for the assignments.

         With respect to MAIPF’s argument that it could not be liable for paying PIP benefits
because it was not an insurer, the trial court concluded that MAIPF was entitled to summary
disposition under (C)(8) as to MHSI, DMC, and Garrett on this basis. The trial court ruled that
“all claims for monetary damages” would be dismissed. The trial court appeared to impliedly
rule that the only type of action that could legitimately be brought against MAIPF was one for
declaratory relief requiring MAIPF to assign the claim to an insurer. The trial court accordingly
dismissed the claims of MHSI, DMC, and Garrett because they did not have a specific count in
their respective complaints for declaratory relief and the court viewed the complaints as seeking
only monetary damages. The trial court further ruled that it “isn’t going to permit an amendment
at this late in the game.”

                                          II. ANALYSIS

        On appeal, MHSI, DMC, and Garrett challenge the trial court’s order granting summary
disposition under MCR 2.116(C)(8). As described above, the trial court’s ruling was based on
two grounds, one of which applied to all three plaintiff-appellants and one of which only applied
to MHSI and DMC. Plaintiff-appellants also challenge the trial court’s related rulings
prohibiting them from amending their complaints.

                                  A. STANDARD OF REVIEW

     “This Court reviews de novo a circuit court’s summary disposition ruling.” Dalley v
Dykema Gossett, 287 Mich App 296, 304; 788 NW2d 679 (2010).

              A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim
       based on the factual allegations in the complaint. When considering such a
       motion, a trial court must accept all factual allegations as true, deciding the
       motion on the pleadings alone. A motion under MCR 2.116(C)(8) may only be
       granted when a claim is so clearly unenforceable that no factual development
       could possibly justify recovery. [El-Khalil v Oakwood Healthcare, Inc, 504 Mich
       152, ___; ___ NW2d ___ (2019) (Docket No. 157846); slip op at 6 (citations
       omitted).]

       This Court also reviews the interpretation of the no-fault act’s statutory provisions de
novo. Agnone v Home-Owners Ins Co, 310 Mich App 522, 526; 871 NW2d 732 (2015). “The
primary goal of statutory interpretation is to give effect to the intent of the Legislature.” Allstate
Ins Co v State Farm Mut Auto Ins Co, 321 Mich App 543, 551; 909 NW2d 495 (2017) (quotation
marks and citation omitted). “If the language of a statute is clear and unambiguous, the statute
must be enforced as written and no further judicial construction is permitted.” Id. (quotation
marks and citation omitted).

        Finally, we review a trial court’s decision denying leave to amend pleadings for an abuse
of discretion. Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich App 182, 207;
920 NW2d 148 (2018).

                                                 -6-
                                       B. DISCUSSION

        The first ground on which the trial court granted summary disposition involved the trial
court’s conclusions that MAIPF could not be held liable for directly paying PIP benefits and,
relatedly, that the only form of action that could be brought against MAIPF was one for
declaratory relief requiring it to assign the claim to an insurer.

         The no-fault act’s intended purpose “is to ensure the compensation of persons injured in
automobile accidents.” Allstate Ins Co, 321 Mich App at 552 (quotation marks and citation
omitted). As part of this statutory scheme, a “person entitled to claim because of accidental
bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a
motor vehicle in this state may claim personal protection insurance benefits through the assigned
claims plan” even when there does not appear to be any PIP coverage applicable to the injury.
MCL 500.3172(1), as amended by 2012 PA 204 (emphasis added);4 see also Spectrum Health
Hosps v Mich Assigned Claims Plan, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket
No. 343563); slip op at 5. MCL 500.3174, as amended by 2012 PA 204, which was the version
of the statute in effect when this action was commenced, instructs that “[t]he Michigan
automobile insurance placement facility shall promptly assign the claim in accordance with the
plan and notify the claimant of the identity and address of the insurer to which the claim is
assigned” once MAIPF is timely notified by a person “claiming through the assigned claims
plan.” However, MAIPF is first required to “make an initial determination of a claimant’s
eligibility for benefits under the assigned claims plan” before assigning the claim to an insurer,
and it “shall deny an obviously ineligible claim.” MCL 500.3173a(1), as amended by 2012 PA
204; see also Spectrum Health, ___ Mich App at ___; slip op at 6-7. If MAIPF denies the claim,
the “claimant shall be notified promptly in writing of the denial and the reasons for the denial.”
MCL 500.3173a(1), as amended by 2012 PA 204; see also Spectrum Health, ___ Mich App at
___; slip op at 7.

        Nonetheless, this Court has previously recognized that although MAIPF assigns claims to
insurers, “the claim itself [is] nonetheless being processed through MAIPF” and the servicing
insurers “act on behalf of the MAIPF.” Candler v Farm Bureau Mut Ins Co of Michigan, 321
Mich App 772, 781; 910 NW2d 666 (2017) (quotation marks and citation omitted). Thus, we
concluded, such a “claim for no-fault benefits is a claim to MAIPF.” Id.

        This conclusion is further supported by the version of MCL 500.3175(1) that was in
effect during the course of the proceedings below, which provided in relevant part as follows:

               The assignment of claims under the assigned claims plan shall be made
       according to procedures established in the assigned claims plan that assure fair
       allocation of the burden of assigned claims among insurers doing business in this
       state on a basis reasonably related to the volume of automobile liability and



4
 The recent amendment to this statute in 2019 PA 21, which took effect on June 11, 2019, has
not substantively changed this particular rule.


                                               -7-
       personal protection insurance they write on motor vehicles or the number of self-
       insured motor vehicles. An insurer to whom claims have been assigned shall
       make prompt payment of loss in accordance with this act. An insurer is entitled to
       reimbursement by the Michigan automobile insurance placement facility for the
       payments, the established loss adjustment cost, and an amount determined by use
       of the average annual 90–day United States treasury bill yield rate . . . . [MCL
       500.3175(1), as amended by 2012 PA 204 (emphasis added).]

        Accordingly, we conclude that plaintiff may seek PIP benefits from MAIPF directly
where MAIPF has not assigned the claim to a servicing insurer. The trial court erred by granting
summary disposition in MAIPF’s favor on the ground that the only type of action that could ever
be brought against MAIPF was one for declaratory relief seeking to require MAIPF to assign an
insurer.

        Furthermore, the trial court also erred by determining that the complaints filed by MHSI,
DMC, and Garrett did not sufficiently request that MAIPF be ordered to assign the claim to an
insurer. The trial court erred in its focus on whether such relief had been sought in its own
distinct count. See Wiggins v City of Burton, 291 Mich App 532, 561; 805 NW2d 517 (2011)
(“Although it has become commonplace in this state for a plaintiff to assert a request for
declaratory relief as a separately labeled cause of action within his or her complaint, this is
technically improper because “declaratory relief is a remedy, not a claim.”).

        MCR 2.111(B)(1) simply requires a complaint to include a “statement of the facts,
without repetition, on which the pleader relies in stating the cause of action, with the specific
allegations necessary reasonably to inform the adverse party of the nature of the claims the
adverse party is called on to defend.” This Court has previously explained that this subrule is
“consistent with a notice pleading environment” and that “[t]he primary function of a pleading in
Michigan is to give notice of the nature of the claim or defense sufficient to permit the opposite
party to take a responsive position.” Dalley, 287 Mich App at 305 (quotation marks and citations
omitted).

        In this case, although the operative complaints did not include a specific paragraph asking
MAIPF to assign an insurer in the “WHEREFORE” clause, “a complaint must be read as a
whole, and it is well settled that this Court will look beyond the mere procedural labels used in
the pleadings.” Wiggins, 291 Mich App at 561. “Courts are not bound by a party’s choice of
labels because this would effectively elevate form over substance.” Shah, 324 Mich App at 204
(quotation marks and citation omitted). It is clear from the face of each complaint that MHSI
and DMC, as well as Garrett, alleged that MAIPF breached its statutory duty to assign an insurer
or otherwise pay Garrett’s PIP claims. MHSI and DMC alleged that MAIPF was required by
MCL 500.3172(1) to “assign a carrier to provide No-Fault benefits to a claimant if no personal
protection insurance applicable to the injury is available” and “breached its statutory obligation
to assign an insurance carrier to process claims arising out of the September 6, 2016 motor
vehicle accident, as provided by MCL 500.3174.” Likewise, Garrett alleged that MAIPF “has
failed to assign Intervening Plaintiff’s claim for no-fault benefits to an insurer, violating its
duties under MCL 500.3171, MCL 500.3172, MCL 500.3173, MCL 500.3174, and MCL
500.3175.” Garrett also alleged that he was entitled to recover benefits from the insurer to which
his claim was assigned and that MAIPF was liable for these benefits if it “continue[d] to violate

                                                -8-
its statutory duty to assign Intervening Plaintiff’s claim to an insurer.” We conclude that the
complaints adequately put MAIPF on notice that the claims relied on the allegation that MAIPF
had breached its statutory duty to assign an insurer in this case and that MHSI, DMC, and Garrett
alleged that MAIPF was required to assign the claim for benefits to an insurer.

        Accordingly, the trial court erred by granting summary disposition under MCR
2.116(C)(8) on such an overly technical basis that was contrary to the principles of notice
pleading applicable in Michigan. Dalley, 287 Mich App at 305. To the extent that the trial court
or MAIPF believed that the form of this request for an order compelling MAIPF to assign the
claim should have been different, the trial court should have permitted amendment of the
complaints. When summary disposition is granted under MCR 2.116(C)(8), the trial court “must
give the parties an opportunity to amend their pleadings pursuant to MCR 2.118, unless the
amendment would be futile.” Shah, 324 Mich App at 209 (quotation marks and citation
omitted); see also MCR 2.116(I)(5). “An amendment is futile if it merely restates the allegations
already made or adds allegations that still fail to state a claim.” Shah, 324 Mich App at 209
(quotation marks and citation omitted). Leave to amend a pleading “shall be freely given when
justice so requires.” MCR 2.118(A)(2). In this case, permitting an amendment to the complaints
for purposes of clarifying that the parties sought an order compelling MAIPF to fulfill its
statutory obligations regarding assignment of the claim would not have been futile under these
standards, and this amendment would have changed the complaint in form only and not
substance. The trial court abused its discretion by denying leave to amend the complaints in this
respect.

         Finally, the trial court also erred by denying MHSI and DMC leave to amend their
complaint to allege an assignment-based theory of standing. It was clear from the outset of this
litigation, and the face of the complaint itself, that MHSI and DMC were claiming an entitlement
to recover PIP benefits based on their respective provision of medical services and
accommodations to Garrett. There is no question that their claims were derivative of any right to
recover PIP benefits that Garrett may have. Allowing MHSI and DMC to amend their complaint
to clarify that their standing was based on an assignment from Garrett would not have changed
anything about the merits of the lawsuit or the basis on which MHSI and DMC claimed that they
were entitled to relief in this case. However, it is clear from the record that the trial court denied
leave to amend solely because it would have preferred that MHSI and DMC had moved to
amend their complaint earlier.

       “[A] motion to amend should ordinarily be denied only for particularized reasons,
including undue delay, bad faith or a dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party, or futility.” Shah, 324
Mich App at 208 (quotation marks and citation omitted; alteration in original). Our Supreme
Court has stated, “While (a)s a general rule, the risk of substantial prejudice increases with the
passage of time, in the absence of a showing of either bad faith or actual prejudice, mere delay
does not warrant denial of a motion to amend.” Ben P Fyke & Sons, Inc v Gunter Co, 390 Mich
649, 663-664; 213 NW2d 134 (1973) (quotation marks and citation omitted).

        In this case, there was no record evidence that the proposed amendment to allege the
existence of the assignment from Garrett would have caused any actual prejudice to MAIPF, nor
is there evidence of bad faith or dilatory motive by MHSI or DMC. Counsel for MHSI and

                                                 -9-
DMC provided a reasonable explanation for the delay by indicating their desire to name an
insurance company defendant in the same motion for leave to amend. MHSI and DMC had
previously filed a motion to compel MAIPF to assign an insurer, but the trial court denied that
motion. Therefore, the trial court abused its discretion by denying leave to amend to reflect to
assignments on the sole basis of the delay in seeking the amendment. The trial court’s assertions
that the amendment was prejudicial and futile were not based on any further explanations or
findings of fact, and such conclusions are unsupported by the record.

       We reverse the trial court’s order granting summary disposition under MCR 2.116(C)(8)
and the trial court’s denial of leave to amend the complaints.

       Reversed and remanded for further proceedings. We do not retain jurisdiction. Plaintiffs
having prevailed are entitled to costs. MCR 7.219(A).

                                                           /s/ Jane M. Beckering
                                                           /s/ Stephen L. Borrello
                                                           /s/ Michael J. Kelly




                                              -10-
