            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



FRANKLIN HARRIS,                                                     UNPUBLISHED
                                                                     January 16, 2020
               Plaintiff-Appellant,

v                                                                    No. 345593
                                                                     Wayne Circuit Court
MICHIGAN AUTOMOBILE INSURANCE                                        LC No. 17-012384-NI
PLACEMENT FACILITY,

               Defendant-Appellee.


Before: RIORDAN, P.J., and SAWYER and JANSEN, JJ.

PER CURIAM.

        In this action seeking recovery of no-fault personal injury protection (PIP) benefits
through the Michigan Assigned Claims Plan (MACP), plaintiff appeals as of right the trial
court’s order granting summary disposition to defendant, the Michigan Automobile Insurance
Placement Facility (MAIPF). We reverse and remand for further proceedings.

                                       I. BACKGROUND

        Plaintiff was injured in an automobile accident on April 21, 2017. On July 5, 2017,
plaintiff submitted a claim for PIP benefits to the MAIPF on a five-page MACP application
form. However, plaintiff failed to complete several sections of the form and the MAIPF
promptly notified plaintiff that it was unable to complete its “initial eligibility determination.”
The MAIPF requested additional information, including the name and address of the vehicle
owner or registrant, the name of the driver, and the names and addresses of any other occupants
of the vehicle. Defendant also requested that plaintiff submit proof of loss, such as a police or
EMS report, and requested that plaintiff contact counsel for the MAIPF to schedule an
examination under oath (EUO). In subsequent letters, the MAIPF repeated the request that
plaintiff’s counsel schedule an EUO for plaintiff.

        In lieu of responding to these letters, on August 18, 2017, plaintiff filed this action in
circuit court. Plaintiff alleged that he was a passenger in a motor vehicle involved in an accident,
that he suffered injuries including shoulder, back, and neck injuries, that he neither owned an
insured motor vehicle nor resided with anyone who owned an insured motor vehicle, and that he


                                                -1-
had incurred expenses for care, recovery, or rehabilitation, lost wages, replacement services, and
attendant care. Plaintiff further alleged that he had submitted an application for PIP benefits, that
reasonable proof for payment of benefits has been provided or would be provided, and that the
MAIPF had unreasonably refused or delayed paying benefits to plaintiff. In its answer, the
MAIPF acknowledged that it had received an incomplete application for benefits, but denied
liability for damages to plaintiff, denied plaintiff’s eligibility for benefits, denied that plaintiff
had submitted reasonable proof sufficient for payment of benefits, and denied that it
unreasonably refused or delayed payment of benefits to plaintiff.

        The MAIPF filed a motion for summary disposition pursuant to MCR 2.116(C)(10),
alleging that plaintiff’s application for benefits was incomplete, that plaintiff had failed to submit
any proof of loss as required by the MACP, and that plaintiff had failed to appear for his EUO.
The MAIPF argued that the no-fault act requires a claimant to follow the procedures of the
MACP, which in turn requires a claimant to “reasonably cooperate” in an investigation of a
claim, and that because plaintiff failed to cooperate in its investigation, dismissal was proper
under MCL 500.3171 and § 5(B)(2) of the MACP. The MAIPF later filed a second motion for
summary disposition, seeking dismissal of plaintiff’s complaint pursuant to MCR 2.116(C)(8)
because the complaint requested a monetary judgment against the MAIPF, but that the MAIPF
could not be liable for PIP benefits because it is a statutorily-created organization whose only
function is to review and assign claims to insurers who are then responsible for payment of
benefits under the no-fault act.

       Plaintiff argued that he had cooperated fully with the MAIPF because the MAIPF had
taken his deposition and he had provided two amended applications for PIP benefits, a copy of a
police report, and medical records. Thus, plaintiff argued, summary disposition was not
warranted under MCR 2.116(C)(10). In response to defendant’s motion under MCR
2.116(C)(8), plaintiff did not contest that the MAIPF cannot be sued for monetary damages, but
requested that the court allow him to amend his complaint to request an order compelling the
MAIPF to assign his claim to an insurer pursuant to the MACP. Plaintiff filed a motion seeking
immediate assignment of his claim to an insurer under the MACP and a motion for leave to file
an amended complaint. The MAIPF filed a motion seeking dismissal of plaintiff’s complaint on
the grounds that plaintiff had failed to appear for a scheduled independent medical examination.

        The trial court granted plaintiff’s motion to amend his complaint and concluded that the
proposed amended complaint cured the deficiencies in the original complaint. Therefore, the
trial court denied defendant’s motion for summary disposition under MCR 2.116(C)(8).
Addressing defendant’s motion for summary disposition under MCR 2.116(C)(10), the court
described plaintiff’s original application for benefits as “woefully inadequate,” observed that
plaintiff offered no explanation for his failure to respond to defendant’s first request for
additional information or an EUO, and held that the amended applications and supporting
documents did not alleviate these defects because they were not submitted until May 2018. The
court then held that “plaintiff’s conduct simply cannot be characterized as reasonable
cooperation [for] purposes of MCL 500.3171 and MACP 5.1(B), even when the evidence is
viewed in the light most favorable to plaintiff.” Thus, the court granted defendant’s motion for
summary disposition under MCR 2.116(C)(10) and dismissed plaintiff’s complaint. The court
concluded that its ruling rendered the remaining motions moot.


                                                 -2-
                                  II. STANDARD OF REVIEW

        A trial court’s decision on a motion for summary disposition is reviewed de novo. Zaher
v Miotke, 300 Mich App 132, 139; 832 NW2d 266 (2013). A motion brought under MCR
2.116(C)(10) tests the factual sufficiency of the complaint. Joseph v Auto Club Ins Ass’n, 491
Mich 200, 205-206; 815 NW2d 412 (2012). A reviewing court must consider the pleadings,
admissions, and other evidence in the light most favorable to the nonmoving party. Latham v
Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). “Summary disposition is
appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and
the moving party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich
177, 183; 665 NW2d 468 (2003). A genuine issue of material fact exists where the record
reveals open an issue upon which reasonable minds might differ. Id.

        Questions of statutory interpretation are also reviewed de novo. Bush v Shabahang, 484
Mich 156, 164; 772 NW2d 272 (2009). The primary goal of statutory interpretation is to discern
the intent of the Legislature; the first step is to examine the language of the statute itself. Krohn
v Home-Owners Ins Co, 490 Mich 145, 156; 802 NW2d 281 (2011). If the statutory language is
plain and unambiguous, a reviewing court will apply the statute as written. Ford Motor Co v
City of Woodhaven, 475 Mich 425, 438-439; 716 NW2d 247 (2006).

                                          III. ANALYSIS

         Under the no-fault act, the MAIPF is tasked with making “an initial determination of a
claimant’s eligibility for benefits under the assigned claims plan and shall deny an obviously
ineligible claim.” MCL 500.3173a(1), as amended by 2012 PA 204. At the time plaintiff filed
his initial application for benefits and complaint in the circuit court, the no-fault act provided that
“[a] person entitled to claim because of accidental bodily injury arising out of the ownership,
operation, or use of a motor vehicle in this state may obtain personal protection insurance
benefits through the assigned claims plan if no personal protection insurance is applicable to the
injury, [or] no personal protection insurance applicable to the injury can be identified. . . .” MCL
500.3172, as amended by 2012 PA 204. The act further provided that “[a] person claiming
through the assigned claims plan shall notify the [MAIPF] of his or her claim within the time that
would have been allowed for filing an action for [PIP] benefits if identifiable coverage applicable
to the claim had been in effect.” MCL 500.3174, as amended 2012 PA 204.

       Plaintiff’s initial application complied with the minimum requirements as listed in MCL
500.3145(1). It included the name and address of the claimant, the time and place of the
accident, and nature of his injuries, and stated that there was no automobile insurance in effect on
the vehicle and that plaintiff was unsure if any other occupant of the vehicle had automobile
insurance at the time of the accident. Perkovic v Zurich American Ins Co, 500 Mich 44, 52; 893
NW2d 322 (2017).

       The trial court granted summary disposition for defendant because plaintiff’s conduct
“simply cannot be characterized as reasonable cooperation [for] purposes of MCL 500.3171 and
MACP 5.1(B), even when the evidence is viewed in the light most favorable to plaintiff.”
However, plaintiff’s failure to comply with MACP 5.1(B) was not a proper reason to grant
summary disposition because “the authority to adopt a plan does not grant the authority to

                                                 -3-
establish rules governing the processing, timing and review of claims under the MACP; those
requirements are enumerated by statute.” Spectrum Health Hosps v Mich Assigned Claims Plan,
___ Mich App ___; ___ NW2d ___ (2019) (Docket No. 343563). At the time of plaintiff’s
injury, application for benefits, and complaint in this case, the no-fault act required the MAIPF to
make an “initial determination of a claimant’s eligibility for benefits” and authorized the MAIPF
to deny “an obviously ineligible claim.” MCL 500.3173a(1), as amended by 2012 PA 204. No
provision of the no-fault act authorized the MAIPF to require a claimant to submit to an EUO.
Similarly, no provision of the no-fault act authorized the MAIPF to deny a claim due to the
claimant’s failure to cooperate. Therefore, the trial court erred by granting defendant’s motion
for summary disposition on this basis.

        However, plaintiff is not entitled to entry of judgment of judgment in his favor. In the
trial court, defendant opposed plaintiff’s motion for assignment of his claim to an insurance
carrier by arguing that plaintiff’s claim was not eligible for assignment to an insurance carrier
because plaintiff’s application for benefits contained false information regarding his prior
medical history and prior accidents. Defendant also noted discrepancies between the application
and the police report and discrepancies between plaintiff’s original application for benefits, his
deposition testimony, and his medical history. Defendant argued that plaintiff’s materially false
statements constituted a fraudulent insurance act, which rendered his claim ineligible for
payment pursuant to MCL 500.3173a(2). Defendant raises these discrepancies and alleged
misrepresentations in its brief on appeal, and asserts that even if this matter is remanded to the
trial court, there are significant issues to be addressed before plaintiff’s claim can be assigned to
a servicing insurer.

        Because the question whether plaintiff’s application for PIP benefits qualifies as a
fraudulent insurance act was not the basis for defendant’s motion and was presented to the court
only as a response to plaintiff’s motion for immediate assignment of the claim to an insurer, the
trial court never reached the issue. It determined that its decision granting summary disposition
pursuant to MCR 2.116(C)(10) for failure to reasonably cooperate “render[s] moot all the other
motions in the matter.” Because the issue was not decided by the trial court and it involves
factual allegations that require further development, it is not appropriate for us to address or
decide this issue. Mouzon v Achievable Visions, 308 Mich App 415, 419; 864 NW2d 606
(2014); Smith v Foerster–Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006)
(recognizing that appellate consideration of an unpreserved issue is appropriate if an issue
involves a question of law and the facts necessary for its resolution have been presented).
Accordingly, we remand for further proceedings. On remand, defendant is free to seek dismissal
on this basis in an appropriate motion.1



1
  We note that the issue presented in this case and decided in Spectrum Health has limited
importance following recent amendments of the no-fault act pursuant to 2019 PA 21, effective
June 11, 2019. Although the amendments are not applicable to this appeal, they significantly
broaden the authority of the MAIPF. For example, § 3172(3), as amended, now explicitly
requires submission of a completed application on a form prescribed by the MAIPF. In addition,
the no-fault act no longer limits the MAIPF to denial of a claim that is “obviously” ineligible.


                                                -4-
                                       IV. CONCLUSION

        We reverse the trial court’s order granting defendant’s motion for summary disposition
and remand this case for further proceedings consistent with this opinion. We do not retain
jurisdiction.

                                                              /s/ Michael J. Riordan
                                                              /s/ David H. Sawyer
                                                              /s/ Kathleen Jansen




Rather, as amended, the MAIPF is required to review a claim to “make an initial determination
of the eligibility for benefits under this chapter and the assigned claims plan” and it has authority
to deny a claim that it “determines is ineligible under this chapter or the assigned claims plan.”
MCL 500.3173a(1). Moreover, the no-fault act now explicitly requires a claimant cooperate
with the MAIPF in its determination of eligibility for benefits, which cooperation may include
submission to an EUO. MCL 500.3173a(2).


                                                -5-
