                            STATE OF MICHIGAN

                            COURT OF APPEALS



RODNEY HARRISON,                                                      UNPUBLISHED
                                                                      November 28, 2017
               Plaintiff,

and

MICHIGAN HEAD & SPINE INSTITUTE, PC,

               Intervening Plaintiff-Appellant,

v                                                                     No. 334083
                                                                      Wayne Circuit Court
ALLSTATE PROPERTY & CASUALTY                                          LC No. 14-013225-NF
INSURANCE COMPANY,

               Defendant-Appellee,

and

THURMAN CLIFFORD RIDENOUR,

               Defendant.


Before: METER, P.J., and BORRELLO and RIORDAN, JJ.

RIORDAN, J. (dissenting).

       I respectfully dissent.

         Intervening plaintiff, Michigan Head & Spine Institute, PC (MHSI), appeals as of right of
the trial court’s order granting summary disposition in favor of defendant, Allstate Property &
Casualty Insurance Company (Allstate), based upon the alleged fraud of the insured, Rodney
Harrison. While this appeal was pending, the Michigan Supreme court issued its opinion in
Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191; 895 NW2d 490 (2017). In
that decision, the Court held that “healthcare providers do not possess a statutory cause of action
against no-fault insurers for recovery of personal protection insurance benefits under the no-fault
act.” Id. at 196. The Court clarified that its opinion was “not intended to alter an insured’s
ability to assign his or her right to past or presently due benefits to a healthcare provider.” Id. at
217 n 40.

                                                  -1-
        Subsequently, in W A Foote Mem Hosp v Michigan Assigned Claims Plan, ___ Mich App
___, ___; ___ NW2d ___ (2017) (Docket No. 333360); slip op at 19, we held that the Court’s
decision in Covenant applied retroactively. In that case, we considered an appeal by a healthcare
provider of a trial court’s order granting summary disposition in favor of the Michigan Assigned
Claims Plan on the ground that the healthcare provider’s “claim was ineligible for assignment
because applicable insurance had been identified, and because [the healthcare provider] could
have recovered PIP benefits from [the applicable insurance company] if it had acted in a timely
fashion.” Id. at ___; slip op at 3. Like in the instant case, Covenant was decided while the
healthcare provider’s appeal was pending before this Court. Id. Despite being presented a case
that initially involved the grant of summary disposition against the healthcare provider for
reasons wholly unrelated to Covenant, we affirmed the grant of summary disposition based on
Covenant, refused to consider the issue initially presented for review, and remanded to the trial
court for further proceedings. Id. at ___; slip op at 19-20. We further opined that, should a
healthcare provider assert that it wished to pursue an assignment theory given the Covenant
decision, “the most prudent and appropriate course for us to take . . . is to remand this case to the
trial court with direction that it allow [the healthcare provider] to amend its complaint, so that the
trial court may address the attendant issues in the first place.” W A Foote, ___ Mich App at ___;
slip op at 19-20.

        In the instant case, it is undisputed that the trial court record is absent of any evidence of
an assignment from the insured to MHSI. Although MHSI now provides on appeal documents it
purports to be evidence of such an assignment, MHSI is not now permitted to expand the record.
See Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002). Considering
that MHSI sought payment from Allstate based on its standing as a healthcare provider for the
insured and there is no assertion or evidence on the record of an assignment, the Court’s decision
in Covenant, 500 Mich App at 196, mandates a finding that MHSI did not have any recognized
statutory ground for recovery. Summary disposition was therefore required in favor of Allstate.
See id.

        Consequently, pursuant to W A Foote, ___ Mich App at ___; slip op at 19-20, I would
have held that the proper remedy in this case is to affirm the trial court’s order granting summary
disposition in favor of Allstate, albeit for a different reason than the trial court, refuse to consider
the issue of the insured’s alleged fraud, and remand with direction to the trial court to consider
MHSI’s motion to amend the complaint and determine the Covenant issue in the first instance
should MHSI argue assignment. Given that Covenant, 500 Mich at 196, and W A Foote, ___
Mich App at ___; slip op at 4, 19-20, are dispositive of this case, it is unnecessary to resolve the
remaining issue before us – the insured’s alleged fraud.

       I would affirm the trial court’s order granting summary disposition in favor of Allstate
and remand with the direction that it allow MHSI to move to amend the complaint.



                                                                /s/ Michael J. Riordan




                                                  -2-
