                          STATE OF MICHIGAN

                            COURT OF APPEALS



SOPHIA BENSON, Individually and as Next                              UNPUBLISHED
Friend of ISIAH WILLIAMS,                                            May 24, 2016

               Plaintiff-Appellant,

v                                                                    No. 325319
                                                                     Wayne Circuit Court
AMERISURE INSURANCE,                                                 LC No. 14-008479-NF

               Defendant-Appellee.


Before: OWENS, P.J., and BORRELLO and STEPHENS, JJ.

PER CURIAM.

        Plaintiff appeals as of right the trial court’s order granting MCR 2.116(C)(10) summary
disposition in favor of defendant in this first-party no-fault action. We affirm.

        On appeal, plaintiff contends that the notice of injury she submitted to defendant
substantially complies with the language of MCL 500.3145(1), and that the trial court erred in
granting summary disposition in favor of defendant on the basis that plaintiff had not provided a
notice of injury in compliance with the statute. We disagree.

        This Court reviews de novo a trial court’s decision regarding a motion for summary
disposition. Coalition of State Employee Unions v State, 498 Mich 312, 322; 870 NW2d 275
(2015). In its motion seeking summary disposition and brief in support, defendant did not
specify the subsections of MCR 2.116 on which it relied to seek dismissal of plaintiff’s claims.
Similarly, the trial court, both in its bench ruling and written order, did not specify what grounds
of MCR 2.116 it relied on in granting defendant’s motion for summary disposition. Because
defendant submitted documentary evidence in support of its motion, and the trial court reviewed
this evidence in granting the motion, it appropriate for this Court to “construe the motion has
having been granted pursuant to MCR 2.116(C)(10).” County of Wayne v Plymouth Charter
Twp, 240 Mich App 479, 480 n 2; 612 NW2d 440 (2000).

               In reviewing a motion under MCR 2.116(C)(10), the trial court considers
       affidavits, pleadings, depositions, admissions, and other evidence introduced by
       the parties to determine whether no genuine issue of material fact exists and the
       moving party is entitled to judgment as a matter of law. MCR 2.116(G)(4);
       Maiden [v Rozwood], 461 Mich [109] at 119; 597 NW2d 817 [1999]. The
       evidence submitted must be considered “in the light most favorable to the


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       opposing party.” MEEMIC Ins Co v DTE Energy Co, 292 Mich App 278, 280;
       807 NW2d 407 (2011). [McLean v Dearborn, 302 Mich App 68, 73; 836 NW2d
       916 (2013).]

       This Court also reviews de novo matters of statutory interpretation. Titan Ins Co v
American Country Ins Co, 312 Mich App 291, ___; 876 NW2d 853 (2015); slip op at 2. In
Joseph v Auto Club Ins Ass’n, 491 Mich 200, 205-206; 815 NW2d 412 (2012), our Supreme
Court articulated the rules of statutory construction.

               [The Court’s] primary goal when interpreting statutes is to discern the
       intent of the Legislature. To do so, [the Court] focus[es] on the best indicator of
       that intent, the language of the statute itself. The words used by the Legislature
       are given their common and ordinary meaning. If the statutory language is
       unambiguous, we presume that the Legislature intended the meaning that it
       clearly expressed, and further construction is neither required nor permitted.
       [Joseph, 491 Mich at 205-206 (footnotes omitted).]

This Court should also avoid interpreting a statute in a manner that “render[s] any part of the
statute surplusage or nugatory.” Haksluoto v Mt Clemens Regional Medical Center, ___ Mich
App ___, ___; ___ NW2d ___ (2016) (Docket No. 323987); slip op at 6.

        The starting point for this Court’s analysis is the language of MCL 500.3145. This
statute provides:

               (1) 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. The notice of injury required by this subsection may be given to the
       insurer or any of its authorized agents by a person claiming to be entitled to
       benefits therefor, or by someone in his behalf. The notice shall give the name and
       address of the claimant and indicate in ordinary language the name of the person
       injured and the time, place and nature of his injury.

               (2) An action for recovery of property protection insurance benefits shall
       not be commenced later than 1 year after the accident. [Emphasis supplied.]

        MCL 500.3145(1) contains several limitations, two on the time for filing suit, and one
limiting the period for which benefits can be recovered. Devillers v Auto Club Ins Ass’n, 473
Mich 562, 574; 702 NW2d 539 (2005). The limitation of recovery to losses that were incurred in




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the one year preceding the filing of the case is known in Michigan as the “one-year-back” rule.
Id.

        This Court recently had occasion to consider the language of MCL 500.3145(1) in
Perkovic v Zurich American Ins Co, 312 Mich App 244, ___; 876 NW2d 839 (2015) (Docket
No. 321531); slip op at 4-5. In Perkovic, the plaintiff was injured in an auto accident in
Nebraska, and received treatment at a hospital there. Id. at ___; slip op at 1. The treating
hospital then, on behalf of the plaintiff, sent a medical bill and plaintiff’s medical records to the
defendant insurance company, seeking to obtain payment for accident related injuries. Id. at
___; slip op at 1-2. The Perkovic Court, 312 Mich App at ___; slip op at 6-8, after considering
Dozier v State Farm Mut Auto Ins Co, 95 Mich App 121, 128; 290 NW2d 408 (1980), and
Heikkinen v Aetna Cas & Sur Co, 124 Mich App 459, 461; 335 NW2d 3 (1981), observed that
the purpose of the notice of injury was to notify an insurer about the potential of a claim, the
need to investigate further and to assess potential liability. Quoting Dozier, 95 Mich App at 128,
the Perkovic Court, 312 Mich App at ___; slip op at 6, recognized:

               The policy and purposes such statutes are intended to serve have been
       stated thus:

                “Statutes of limitations are intended to ‘compel the exercise of a right of
       action within a reasonable time so that the opposing party has a fair opportunity to
       defend’; ‘to relieve a court system from dealing with “stale” claims, where the
       facts in dispute occurred so long ago that evidence was either forgotten or
       manufactured’; and to protect ‘potential defendants from protracted fear of
       litigation’.”

       Notice provisions have different objectives than statutes of limitations:

              “Notice provisions are designed, inter alia, to provide time to investigate
       and to appropriate funds for settlement purposes.”

               In light of these objectives, and the existence in a single statutory
       provision of both a notice provision and a limitation of action provision, we
       conclude that substantial compliance with the written notice provision which does
       in fact apprise the insurer of the need to investigate and to determine the amount
       of possible liability of the insurer's fund, is sufficient compliance under s 3145(1).
       [Citations omitted in original; emphasis supplied).].

        The Perkovic Court went on to state that notice must be sufficient to apprise an insurer of
“the need to investigate and to determine the amount of possible liability of the insurer’s fund.”
Perkovic, 312 Mich App at ___; slip op at 7, quoting Heikkinen, 124 Mich App at 461. The
Perkovic Court ultimately held that where the plaintiff’s medical bill and records were forwarded
to the defendant insurance company without any indication that a claim could be pending with
the defendant, the correspondence “did not trigger [the] defendant’s investigative procedures or
advise [the] defendant of the need to appropriate funds for settlement.” Perkovic, 312 Mich App
at ___; slip op at 8. Accordingly, the Perkovic Court concluded that where the purposes of MCL
500.3145(1) were not satisfied, the plaintiff had not provided sufficient notice of injury pursuant



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to the statute, and affirmed the trial court’s grant of summary disposition in favor of the
defendant. Id. at ___; slip op at 8.

         In this case, plaintiff’s counsel sent a March 31, 2014 letter to defendant asserting a claim
for first-party benefits for a May 23, 2013 accident. The letter included the name of the plaintiff
and the date of accident. The letter did not include the location of the accident or a police report
number or copy. It also, failed to provide the address or policy number for the plaintiff. The
defendant sent numerous letters thereafter requesting, at the least a policy number or other
information needed to determine the existence of a policy of insurance. The claim was denied
due to plaintiff's failure to provide any additional information. As of the date for surmount on
the summary disposition motion, plaintiff had not filed or provided a copy of the police report
for the subject accident. We conclude that the trial court properly granted summary disposition
in favor of defendant where plaintiff’s notice of injury met neither the clear dictates of MCL
500.3145(1) governing content fulfilled nor the notice purpose of the statute. Perkovic, 312
Mich App at ___; slip op at 8. Plaintiff’s notice of injury did not fulfill the requirements set forth
in the plain language of the statute, where it did not provide plaintiff’s address, or “the time,
place and nature of injury.” MCL 500.3145(1). Accordingly, although this Court has not
historically required strict compliance with the plain language of the statute, Perkovic, 312 Mich
App at ___; slip op at 8, plaintiff’s notice of injury cannot be said to have substantially complied
with the statute’s requirements, where it failed to comply with the notice provisions of MCL
500.3145(1). Perkovic, 312 Mich App at ___; slip op at 8. In other words, plaintiff’s deficient
notice of injury simply did not allow defendant an opportunity to properly investigate plaintiff’s
claim or to manage funds for potential settlement purposes. Perkovic, 312 Mich App at ___; slip
op at 6, 8, quoting Dozier, 95 Mich App at 128.

        While plaintiff cites Dozier in support of her argument that her notice of injury
substantially complied with MCL 500.3145(1), defendant correctly points out that Dozier is
distinguishable from the facts in the instant case. As an initial matter, Dozier, 95 Mich App at
128, stands for the proposition that in order to substantially comply with the notice provision of
MCL 500.3145(1), an insurer must be put on notice of their need to investigate and to determine
their potential liability. Plaintiff simply has not done so in the instant case. It is worthy of note
that in Dozier, the plaintiff’s notice of injury contained the name of the insured, the name of the
claimants, as well as the date of the accident at issue. Dozier, 95 Mich App at 124. However, in
Dozier, where the defendant insurer acknowledged the plaintiff’s correspondence, and did not
deny liability or request additional information, this Court concluded that such action amounted
to a waiver of any right to challenge the insufficiency of the notice. Id. at 130. In the instant
case, defendant repeatedly sought more particulars to allow it to determine its liability, and
eventually denied plaintiff’s claim because plaintiff was not forthcoming. Accordingly, a close
review of Dozier reveals that it is not supportive of plaintiff’s argument.

          Given our resolution of the above, we need not address plaintiff’s remaining issue on
appeal.




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Affirmed.

                  /s/ Donald S. Owens
                  /s/ Stephen L. Borrello
                  /s/ Cynthia Diane Stephens




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