                          STATE OF MICHIGAN

                           COURT OF APPEALS



HOWARD T. LINDEN, Conservator for the Estate                        FOR PUBLICATION
of INDIA ARNE THOMAS a/k/a INIA ARNE                                November 13, 2014
THOMAS,                                                             9:25 a.m.

               Plaintiff-Appellee,

v                                                                   No. 312702
                                                                    Ingham Circuit Court
CITIZENS INSURANCE COMPANY OF                                       LC No. 10-001572-NF
AMERICA,

               Defendant/Third-Party Plaintiff-
               Appellant,
and

WILLIAM THOMAS and TAMAKIA THOMAS,

               Third Party Defendants.



Before: WILDER, P.J., and FITZGERALD and MARKEY, JJ.

PER CURIAM.

        In this action for personal protection insurance (PIP) benefits under the no-fault act, MCL
500.3101 et seq., defendant appeals by leave granted1 the trial court’s order denying defendant’s
motion for summary disposition under MCR 2.116(C)(7) or, in the alternative, partial summary
disposition under MCR 2.116(C)(10), and granting partial summary disposition in favor of
plaintiff. We affirm in part, reverse in part, and remand.

        Plaintiff brought this action to recover PIP benefits on behalf of India Arne Thomas
(India), for accidental bodily injuries arising out of a July 17, 2001 automobile accident. It is
undisputed that India was a minor at the time of the accident. Plaintiff alleges that India
sustained massive catastrophic brain damage and other extensive physical injuries in the


1
  Estate of India Arne Thomas v Citizens Ins Co, unpublished order of the Court of Appeals,
issued July 15, 2013 (No. 312702).


                                               -1-
accident, resulting in her being confined to a wheelchair and requiring 24-hour per day life-
sustaining medical care, monitoring, and supervision. It is also undisputed that no identifiable
coverage applied to India’s injury and that written notice of India’s claim for PIP benefits was
first given to the Michigan Assigned Claims Facility (MACF) on June 24, 2010.

        The MACF assigned the claim to defendant, who denied PIP benefits on the basis that
plaintiff’s claim was time-barred under MCL 500.3145(1) and MCL 500.3174. Plaintiff filed
this action on December 8, 2010. Following a hearing, the trial court denied defendant’s motion
for summary disposition or partial summary disposition, and it granted partial summary
disposition in favor of plaintiff on all issues raised in defendant’s motion. First, the trial court
ruled that MCL 500.3145(1)’s one-year statute of limitations was tolled by the minority/insanity
tolling provisions of MCL 600.5851(1). Second, the trial court ruled that the one-year-back rule
of MCL 500.3145(1) did not apply to plaintiff because MCL 500.3174 does not contain such a
rule and because the equitable doctrine of contra non valentem prevents a time prescription from
running against a person incapable of protecting their rights, such as India.

        This Court reviews de novo both questions regarding the interpretation and application of
statutes, and a decision to grant or deny a motion for summary disposition. Coblentz v Novi, 475
Mich 558, 567; 719 NW2d 73 (2006).

       When considering a motion for summary disposition under MCR 2.116(C)(7), “the trial
court must accept as true the allegations of the complaint unless contradicted by the parties’
documentary submissions.” Tenneco Inc v Amerisure Mut Ins Co, 281 Mich App 429, 443; 761
NW2d 846 (2008). If the pleadings and documentary evidence reveal no genuine issues of
material fact, the court decides whether a claim is barred as a matter of law. Id. at 443-444.
Summary disposition under MCR 2.116(C)(10) is appropriate when, considering the evidence
and all legitimate inferences in the light most favorable to the nonmoving party, there is no
genuine issue as to any material fact, and the moving party is entitled to judgment or partial
judgment as a matter of law. Coblentz, 475 Mich at 567-568.

        Defendant first argues that, under MCL 500.3145(1) and MCL 500.3174, plaintiff cannot
maintain this action because written of notice of injury was not given to the MACF within one
year of the accident. We disagree.

        The primary goal of interpreting statutory language is to effectuate the Legislature’s
intent. Lafarge Midwest, Inc v Detroit, 290 Mich App 240, 246; 801 NW2d 629 (2010). If the
language used in the statute is clear, the Legislature must have intended the meaning it plainly
expressed, and the statute must be enforced as written. Id. at 246-247. “Only when an
ambiguity exists in the language of the statute is it proper for a court to go beyond the statutory
text to ascertain legislative intent.” Whitman v City of Burton, 493 Mich 303, 312; 831 NW2d
223 (2013). A statutory provision is ambiguous only if it irreconcilably conflicts with another
provision or when it is equally susceptible to more than one meaning. Lafarge Midwest, 290
Mich App at 247.

       If construction of a statute is necessary, “a court must look to the object of the statute in
light of the harm it is designed to remedy and apply a reasonable construction that best
accomplishes the purposes of the statute.” C D Barnes Assoc, Inc v Star Heaven, LLC, 300 Mich

                                                -2-
App 389, 408; 834 NW2d 878 (2013). Every word of the statute is presumed to have some
meaning, so courts should avoid any construction that would render any part of the statute
surplusage or nugatory. Whitman, 493 Mich at 312-313. Statutes that relate to the same subject
or share a common purpose are in pari materia and must be read together as one law. Titan Ins
Co v State Farm Mutual Auto Ins Co, 296 Mich App 75, 84; 817 NW2d 621 (2012).

        Under the no-fault act, uninsured claimants may obtain PIP benefits through an assigned
claims plan. MCL 500.3172. Before June 27, 2012, uninsured persons were required to file
their claims through the MACF.2 MCL 500.3172; 2012 PA 204. Specifically, MCL 500.3174
provided as follows:

               A person claiming through an assigned claims plan shall notify the facility
       of his claim within the time that would have been allowed for filing an action for
       personal protection insurance benefits if identifiable coverage applicable to the
       claim had been in effect. The 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, or of the facility if the claim is assigned to
       it. An action by the claimant shall not be commenced more than 30 days after
       receipt of notice of the assignment or the last date on which the action could have
       been commenced against an insurer of identifiable coverage applicable to the
       claim, whichever is later.

        Defendant is correct that the first sentence of MCL 500.3174 contains a notice provision,
but it only required plaintiff to notify the MACF of the 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. The third sentence limits the time in which a
plaintiff could bring an action for PIP benefits, stating that it “shall not be commenced more than
30 days after receipt of notice of the assignment or the last date on which the action could have
been commenced against an insurer of identifiable coverage applicable to the claim, whichever is
later.” Thus, plaintiff timely notified the MACF of her claim and timely filed her action if she
accomplished both within the time that would have been allowed for her to file an action if
identifiable coverage had been available.

       The time that would have been allowed to file an action if identifiable coverage had been
available is governed by MCL 500.3145(1), which provides in pertinent part:

               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,


2
  Following the enactment of 2012 PA 204, such claims are now filed through the Michigan
automobile insurance placement facility. MCL 500.3171.


                                                -3-
       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. . . .

        As our Supreme Court has explained, the statute contains two distinct limitations on the
time for commencing an action. Cameron v Auto Club Ins Ass’n, 476 Mich 55, 61, 70; 718
NW2d 784 (2006).3 Under the first half of the first sentence, a claimant may file an action for
benefits not later than one year after the date of the accident causing injury. Id. Under the
second half of the first sentence and the second sentence, a claimant may file an action for
benefits at any time within one year of the most recent allowable expense if the claimant gave
written notice of injury to the insurer within one year after the accident or the insurer previously
paid PIP benefits for the injury. Id. at 70 (stating that “in cases where the insured has given
notice or the insurer has previously paid benefits,” the claimant “is subject to the separate and
distinct period of limitations for filing suit that starts at the time of the most recent loss”).

       Notably, MCL 500.3145(1) does not require a claimant to give written notice of injury if
an action is commenced within one year of the accident. And if MCL 600.5851(1) tolled the
one-year statute of limitation for filing an action for PIP benefits, plaintiff’s deadline to notify
the MACF of her claim under MCL 500.3174 would be tolled to the same extent.

       MCL 600.5851(1) provides as follows:

               Except as otherwise provided in subsections (7) and (8), if the person first
       entitled to make an entry or bring an action under this act is under 18 years of age
       or insane at the time the claim accrues, the person or those claiming under the
       person shall have 1 year after the disability is removed through death or
       otherwise, to make the entry or bring the action although the period of limitations
       has run. This section does not lessen the time provided for in section 5852.
       [Emphasis added.]

        There is no dispute on appeal that plaintiff is entitled to the protections of MCL
600.5851(1). Instead, the issue is whether MCL 600.5851(1) applies to an action for PIP
benefits under the no-fault act.

        Defendant argues that MCL 600.5851(1) cannot be invoked in an action under the no-
fault act because under a 1993 amendment, the statute was expressly limited to actions “under
this act,” meaning the RJA, and an action under the no-fault act is not under the RJA. Defendant
asserts that the meaning of the phrase “under this act” is an open question for this Court to decide
in light of Cameron, 476 Mich at 64, which vacated this Court’s ruling that the tolling provision
at issue does not apply to statute of limitations for no-fault actions because it was unnecessary to


3
 The Court’s decision in Cameron was overruled by Univ of Mich Regents v Titan Ins Co, 487
Mich 289; 791 NW2d 897 (2010). In Joseph v Auto Club Ins Ass’n, 491 Mich 200, 204; 815
NW2d 412 (2012); however, the Court overruled Regents and reinstated Cameron.


                                                -4-
reach the issue. Plaintiff responds, without citation to controlling authority, that all civil actions
are brought “under” the RJA and argues that the Michigan Supreme Court has never doubted that
MCL 600.5851(1) applies to actions under the no-fault act.

        In Klida v Braman, 278 Mich App 60; 748 NW2d 244 (2008), this Court decided the
meaning of the phrase “under this act” after a lengthy discussion and analysis. The Court
concluded that all civil actions are brought “under the RJA,” whether based on statute, common
law, or contract, and MCL 600.5851(1) is applicable to such actions. The Court opined:

               We conclude that a reasonable construction of the phrase “under this act”
       contained within the minority tolling provision, MCL 600.5851(1), that best
       accomplishes the statute’s purpose is that all civil actions are brought “under” the
       RJA, including plaintiff’s breach of contract action. We discern no persuasive
       reason to ascribe a legislative intent to limit the application of MCL 600.5851(1)
       to causes of action arising from a purported violation of a specific statutory
       provision contained within the RJA or to causes of action for which the applicable
       statute of limitations is provided by the RJA. And, considering the RJA’s
       remedial character, the protective purpose of the minority tolling provision, as
       well as the harm it was designed to remedy—the deprivation of legal rights—we
       conclude that whether the cause of action arises by statute, common law, or
       contract, the minority tolling provision is applicable. To deny minors whose
       cause of action accrues during their disability the opportunity to pursue their
       otherwise unasserted legal rights would be the antithesis of the firmly-rooted
       public policy that such minors are to be protected until one year after they reach
       the age of majority. Such persons would be denied their legal rights simply
       because they labored under a legal disability. [Klida, 278 Mich App at 74-75
       (citation omitted).]

       Accordingly, since there is no dispute that plaintiff’s action is a civil action, the
minority/insanity tolling provisions of MCL 600.5851(1) are applicable.

         We must next consider whether the minority/insanity tolling provisions of MCL
600.5851(1) apply to MCL 500.3145(1) one-year statute of limitations and the one-year-back
rule. Defendant argues that the tolling provisions cannot apply to the limitations provided in the
first sentence of MCL 500.3145(1) because they are notice provisions, not statutes of limitations.
But as discussed above, “MCL 500.3145(1) contains two limitations on the time for commencing
an action.” Cameron, 476 Mich at 61. Accordingly, the first sentence is considered a “statute of
limitations,” to which MCL 600.5851(1) applies. See Joseph v Auto Club Ins Ass’n, 491 Mich
200, 207-208, 214; 815 NW2d 412 (2012). However, MCL 500.3145(1) also contains a
limitation on “the period for which benefits may be recovered.” Cameron, 476 Mich at 61.
Specifically, the third sentence of MCL 500.3145(1) provides that a 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). This limitation on damages is commonly referred to as
the “one-year-back rule.” See Cameron, 476 Mich at 62; Joseph, 491 Mich at 214.

       Unlike the statute of limitations, the one-year-back rule is not subject to the
minority/insanity tolling provisions of MCL 600.5851(1). Joseph, 491 Mich at 203, 222.

                                                 -5-
Further, the one-year-back rule “must be enforced by the courts of this state as our Legislature
has written it.” Devillers v Auto Club Ins Ass’n, 473 Mich 562, 586; 702 NW2d 539 (2005); See
also Henry Ford Health Sys v Titan Ins Co, 275 Mich App 643; 741 NW2d 393 (2007).

        The trial court nevertheless ruled that MCL 500.3145(1)’s one-year-back rule did not
apply to a plaintiff seeking PIP benefits under an assigned claims plan because MCL 500.3174
does not contain a one-year-back rule. Defendant, relying on Bronson Methodist Hosp v Allstate
Ins Co, 286 Mich App 219; 779 NW2d 304 (2009), argues that the trial court erred. Plaintiff
responds that Bronson Methodist Hosp did not actually decide whether the one-year-back-rule
applies to claims under an assigned claims plan because the parties implicitly assumed that it
applied. Contrary to plaintiff’s contention, we conclude that Bronson squarely decided this
issue. The Court, citing Henry Ford Health Sys, 275 Mich App at 646-647, noted that “[c]laims
filed through the MACF remain subject to the one-year-back rule found in MCL 500.3145(1).”
Bronson Methodist Hosp, 286 Mich App at 225. The Court reasoned that the Legislature’s
“omission of language in MCL 500.3174 extending the recovery limitation was intentional” and,
therefore, “recovery of benefits remains subject to the one-year-back rule.” Id. at 228. Thus, the
Court explicitly held that “MCL 500.3174 does not extend the recovery limitation found in MCL
500.3145(1) because the language used by the Legislature in MCL 500.3174 unambiguously
describes only an extension of the statute of limitations period.” Bronson Methodist Hosp, 286
Mich App at 229. Thus, the trial court erred by not applying the one-year-back rule on the basis
of MCL 500.3174.

        Lastly, defendant argues that the trial court erred in concluding that the equitable doctrine
of contra non valentem precluded all time limitations of MCL 500.3145(1) from running against
plaintiff. We agree.

       Black’s Law Dictionary (9th ed), defines the doctrine of contra non valentem as follows:
“The rule that a limitations or prescriptive period does not begin to run against a plaintiff who is
unable to act, usu. because of the defendant’s culpable act, such as concealing material
information that would give rise to the plaintiff’s claim.”

        Plaintiff has failed to establish that the doctrine of contra non valentem is recognized and
applied in Michigan. Plaintiff asserts that the doctrine of contra non valentem is a venerable
common-law principle that has been recognized in this Court for at least 25 years and that it
precludes all time limitations in MCL 500.3145(1) from running against plaintiff. In support of
this assertion, plaintiff cites one published decision, Kalakay v Farmers Ins Group, 120 Mich
App 623; 327 NW2d 537 (1982), non-binding under MCR 7.215(J)(1), in which this Court
referenced the doctrine but stated that it did not apply under the circumstances, and two
unpublished decisions similarly ruling that the doctrine did not apply under the circumstances.




                                                -6-
        Moreover, our Supreme Court has held that courts may not use their equitable powers to
disregard the one-year-back rule on the basis that the statute itself is unfair.4 In Devillers, 473
Mich at 589, the Court rejected the view that “judges are omniscient and may, under the veil of
equity, supplant a specific policy choice adopted on behalf of the people of Michigan by their
elected representatives in the Legislature.” The Court explained the danger of such an approach
under our constitutional system of separation of powers:

               Indeed, if a court is free to cast aside, under the guise of equity, a plain
       statute such as § 3145(1) simply because the court views the statute as “unfair,”
       then our system of government ceases to function as a representative democracy.
       No longer will policy debates occur, and policy choices be made, in the
       Legislature. Instead, an aggrieved party need only convince a willing judge to
       rewrite the statute under the name of equity. While such an approach might be
       extraordinarily efficient for a particular litigant, the amount of damage it causes to
       the separation of powers mandate of our Constitution and the overall structure of
       our government is immeasurable. . . . [Id. at 591.]

While acknowledging that “courts undoubtedly possess equitable power,” the Court stated that
“such power has traditionally been reserved for ‘unusual circumstances’ such as fraud or mutual
mistake.” Id. at 590.

       In this case, plaintiff has not alleged any unusual circumstance, such as fraud or mutual
mistake, which would provide a basis for invoking judicial equitable powers as a means to
disregard the plain language of MCL 500.3145(1). Although plaintiff’s circumstances are
unfortunate, this Court is bound to enforce the one-year-back rule as the Legislature has written
it. Devillers, 473 Mich at 586.

       We affirm in part, reverse in part, and remand for proceedings consistent with this
opinion. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, neither party
having prevailed in full.



                                                             /s/ Kurtis T. Wilder
                                                             /s/ E. Thomas Fitzgerald
                                                             /s/ Jane E. Markey




4
  In Devillers, Justice Cavanagh would have applied “equitable tolling,” which he considered
another name for the doctrine of contra non valentem, to the one-year-back rule. Devillers, 473
Mich at 594 n 1 (Cavanagh, J., dissenting).


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