                          STATE OF MICHIGAN

                           COURT OF APPEALS



CHIROPRACTORS REHABILITATION                                     FOR PUBLICATION
GROUP, P.C.,                                                     October 29, 2015
                                                                 9:00 a.m.
               Plaintiff-Appellee,

v                                                                No. 320288
                                                                 Oakland Circuit Court
STATE FARM MUTUAL AUTOMOBILE                                     LC No. 2013-009983-AV
INSURANCE COMPANY,

               Defendant-Appellant.


ELITE HEALTH CENTERS, INC.,
CHIROPRACTIC, P.C., and HORIZON
IMAGING, L.L.C.,

               Plaintiffs-Appellees,

v                                                                No. 322317
                                                                 Oakland Circuit Court
STATE FARM MUTUAL AUTOMOBILE                                     LC No. 2014-139132-AV
INSURANCE COMPANY,

               Defendant-Appellant.


Before: WILDER, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

WILDER, P.J.

       These consolidated appeals are before this Court by leave granted.1 In each case,
defendant, State Farm Mutual Automobile Insurance Company (“State Farm”), appeals a circuit


1
 Chiropractors Rehab Group, PC v State Farm Mut Auto Ins Co, unpublished order of the Court
of Appeals, entered June 25, 2014 (Docket No. 320288); Elite Health Ctrs, Inc v State Farm Mut
Auto Ins Co, unpublished order of the Court of Appeals, entered July 11, 2014 (Docket No.
322317).


                                             -1-
court order affirming a district court order denying its motion for summary disposition. In
Docket No. 322317, State Farm also challenges the district court’s order denying leave to amend
its affirmative defenses. We affirm in part and reverse in part.

                                                 I

        Plaintiffs in both cases are healthcare providers that rendered medical treatment to
individuals allegedly injured in motor vehicle accidents. The medical providers brought actions
in the district court, pursuant to the no-fault act, MCL 500.3101 et seq., seeking reimbursement
for medical expenses related to the treatment rendered. State Farm, the no-fault insurer allegedly
responsible for payment of personal injury protection (“PIP”) benefits under the no-fault act,
filed motions for summary disposition in which it argued, among other things, that the injured
parties were not eligible for the payment of PIP benefits and, therefore, the healthcare providers
were similarly precluded from seeking such benefits. The district courts denied State Farm’s
motion for summary disposition in each case.

                                                 A

        In Docket No. 320288, Raynard Jackson allegedly sustained injuries on or about
September 4, 2011, while a passenger in a motor vehicle owned and operated by Mohammed
Abdullah. At the time, Abdullah’s vehicle was insured under a no-fault policy issued by State
Farm. Because of incomplete and conflicting police reports and medical records, there were
questions regarding whether Jackson was injured in the accident. Consequently, in response to
Jackson’s claim for PIP benefits, State Farm requested that Jackson submit to a medical
examination (“ME”) as permitted under MCL 500.3151 and an examination under oath
(“EUO”). Jackson failed to appear for two ME appointments scheduled in February and March
2012. He similarly failed to attend the EUO. In April 2012, State Farm advised Jackson, though
his legal counsel, that because of Jackson’s failure to cooperate with its investigation of the
claim, State Farm was suspending his claim for benefits.

        Sometime after the accident, Jackson sought treatment from plaintiff, Chiropractors
Rehabilitation Group, P.C. When State Farm failed to reimburse plaintiff for the charges
associated with its treatment of Jackson, plaintiff filed a complaint alleging that, pursuant to the
no-fault act, it was entitled to reimbursement from State Farm for the services it provided to
Jackson. On May 10, 2013, State Farm moved for summary disposition pursuant to MCR
2.116(C)(10), arguing that it was not responsible for charges associated with plaintiff’s treatment
of Jackson. State Farm asserted that because Jackson failed to cooperate in its investigation of
the claims, he was not eligible for coverage under the policy. State Farm then reasoned that
Jackson’s ineligibility for coverage barred the claims of any healthcare provider seeking
coverage on Jackson’s behalf.

         The district court denied State Farm’s motion for summary disposition. The court found
that questions of fact existed regarding whether Jackson was eligible for coverage under the no-
fault act and whether Jackson’s ineligibility would bar the provider’s claims. The district court
also denied State Farm’s motion for reconsideration. On appeal, the circuit court affirmed the
district court’s order.


                                                -2-
                                                B

       In Docket No. 322317, Ricky Johnson was purportedly a passenger in a vehicle involved
in an accident on June 28, 2012, but the traffic report identified only “Qutrel Monteque” as a
passenger. Johnson purportedly gave the police a false name at the time of the accident. On
August 23, 2012, Johnson sought treatment from plaintiff Elite Health Centers, Inc. Johnson
complained of neck and back pain that he attributed to injuries sustained in the accident.
Johnson also sought treatment from plaintiff Horizon Imaging, L.L.C., in September 2012, where
he underwent three MRIs.

         On September 19, 2012, Johnson filed a claim for PIP benefits with State Farm, which
had issued a policy of no-fault insurance to Veretta Robinson, the owner of the vehicle in which
Johnson was allegedly a passenger. On January 22, 2013, State Farm requested that Johnson
appear for an EUO on February 4, 2013. Johnson failed to appear for this scheduled EUO and
later failed to appear at EUOs rescheduled for March 20, 2013 and March 22, 2013.

        On September 6, 2013, plaintiffs filed a first amended complaint seeking PIP benefits
from State Farm. Plaintiffs sought reimbursement of nearly $20,000 in outstanding medical
expenses related to plaintiffs’ treatment of Johnson. On November 19, 2013, State Farm filed a
motion to amend its affirmative defenses and for summary disposition. Through this motion,
State Farm sought to include as an affirmative defense that plaintiffs’ suit was barred because
Johnson had failed to cooperate with State Farm’s investigation of the claim. State Farm also
argued that summary disposition of plaintiffs’ claims was appropriate because Johnson’s
ineligibility for PIP benefits precluded plaintiffs from seeking such benefits. Additionally, State
Farm asserted that the policy language at issue required Johnson to submit to an EUO as a
condition precedent to the recovery of benefits. State Farm argued that Johnson’s failure to
cooperate made it impossible to establish whether a loss occurred or whether it was first in
priority to provide no-fault coverage to Johnson. State Farm, therefore, reasoned that summary
disposition was appropriate pursuant to MCR 2.116(C)(10). In response, plaintiffs argued that
because EUO provisions in insurance contracts may not act as a condition precedent to the
recovery of PIP benefits, State Farm was not entitled to summary disposition.

       The district court denied State Farm’s motion to amend its affirmative defenses and for
summary disposition. The court found that State Farm had provided no legal authority to
warrant an amendment to the affirmative defenses. With respect to the summary disposition
motion, the court held that Johnson’s actions did not preclude a healthcare provider’s claim
because a healthcare provider has a right to a separate cause of action.

       On January 30, 2014, State Farm filed a motion for reconsideration of the district court’s
order denying leave to amend its affirmative defenses. In this motion, State Farm argued that
healthcare providers lacked standing to pursue a claim for PIP benefits, asserting that only the
injured party could pursue such a claim. On February 4, 2014, the district court denied State
Farm’s motion for reconsideration.

       The circuit court denied State Farm’s application for leave to appeal, finding that State
Farm had failed to show that it would suffer substantial harm by awaiting final judgment. This
Court thereafter granted leave to appeal.

                                                -3-
                                                  II

        In both appeals, State Farm argues that the lower courts erred in denying its motions for
summary disposition. We review de novo a trial court’s decision on a motion for summary
disposition,” Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d
223 (2013), as well as a circuit court’s affirmance of a district court’s decision on a motion for
summary disposition, First of Am Bank v Thompson, 217 Mich App 581, 583; 552 NW2d 516
(1996). When reviewing a motion for summary disposition pursuant to MCR 2.116(C)(10), this
Court must consider, in the light most favorable to the party opposing the motion, “the
‘affidavits, together with the pleadings, depositions, admissions, and documentary evidence then
filed in the action or submitted by the parties.’ ” Calhoun Co v Blue Cross Blue Shield
Michigan, 297 Mich App 1, 11-12; 824 NW2d 202 (2012), quoting MCR 2.116(G)(5).
“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.”
Dillard v Schlussel, 308 Mich App 429, ___; ___ NW2d ___ (2014); slip op at 8-9 (quotation
marks and citation omitted). “There is a genuine issue of material fact when reasonable minds
could differ on an issue after viewing the record in the light most favorable to the nonmoving
party,” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008), or “when the
evidence submitted ‘might permit inferences contrary to the facts asserted by the movant,’ ”
Dillard, 308 Mich App at ___; slip op at 9, quoting Opdyke Investment Co v Norris Grain Co,
413 Mich 354, 360; 320 NW2d 836 (1982).

                                                  A

        State Farm first argues in Docket No. 322317 that healthcare providers do not have
standing under the no-fault act to bring an action against an insurer to obtain no-fault PIP
benefits. We disagree.

        This issue is not properly preserved because State Farm raised this argument for the first
time in a motion for reconsideration. Vushaj v Farm Bureau Gen Ins Co of Michigan, 284 Mich
App 513, 519; 773 NW2d 758 (2009). However, we will review this issue because it is an issue
of law and all of the relevant facts are available. Id.

       Whether a party has standing to bring an action is a question of law reviewed de novo on
appeal. Gyarmati v Bielfield, 245 Mich App 602, 604; 629 NW2d 93 (2001).

       [A] litigant has standing whenever there is a legal cause of action. . . . Where a
       cause of action is not provided at law, then a court should, in its discretion,
       determine whether a litigant has standing. A litigant may have standing in this
       context if the litigant has a special injury or right, or substantial interest, that will
       be detrimentally affected in a manner different from the citizenry at large or if the
       statutory scheme implies that the Legislature intended to confer standing on the
       litigant. [Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 372; 792
       NW2d 686 (2010) (emphasis added).]

This Court has frequently restated the following principles of statutory construction:



                                                 -4-
               The primary goal of statutory interpretation is to ascertain and give effect
       to the intent of the Legislature in enacting a provision. Statutory language should
       be construed reasonably, keeping in mind the purpose of the statute. The first
       criterion in determining intent is the specific language of the statute. If the
       statutory language is clear and unambiguous, judicial construction is neither
       required nor permitted, and courts must apply the statute as written. However, if
       reasonable minds can differ regarding the meaning of a statute, judicial
       construction is appropriate. [CG Automation & Fixture, Inc v Autoform, Inc, 291
       Mich App 333, 338; 804 NW2d 781 (2011) (quotation marks and citation
       omitted).]

Courts should give effect to every word and phrase in a statute and avoid an interpretation that
renders any part of a statute surplusage or nugatory. Dep’t of Environmental Quality v Worth
Twp, 491 Mich 227, 238; 814 NW2d 646 (2012).

        In Munson Med Ctr v Auto Club Ins Ass’n, 218 Mich App 375, 381-381; 554 NW2d 49
(1996), this Court previously recognized that medical service providers have the “right to be paid
for the injureds’ no-fault medical expenses . . . pursuant to MCL 500.3105, 500.3107, and
500.3157 . . . .” (Emphasis added.)2 Similarly, a healthcare provider’s right to reimbursement
for medical expenses in a first-party no-fault action is evident in the statutory language of MCL
500.3112, especially when the language is considered in context with MCL 500.3105, 500.3107,
and 500.3157. MCL 500.3112 states, in pertinent part, that “[p]ersonal protection insurance
benefits are payable to or for the benefit of an injured person or, in the case of his death, to or for


2
  MCL 500.3105(1) provides, “Under personal protection insurance an insurer is liable to pay
benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use
of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” In relevant part,
the previous and current version of MCL 500.3107 states:
       (1) Except as provided in subsection (2), personal protection insurance benefits
       are payable for the following:

       (a) Allowable expenses consisting of all reasonable charges incurred for
       reasonably necessary products, services and accommodations for an injured
       person’s care, recovery, or rehabilitation. . . .

Finally, MCL 500.3157 provides:

       A physician, hospital, clinic or other person or institution lawfully rendering
       treatment to an injured person for an accidental bodily injury covered by personal
       protection insurance, and a person or institution providing rehabilitative
       occupational training following the injury, may charge a reasonable amount for
       the products, services and accommodations rendered. The charge shall not
       exceed the amount the person or institution customarily charges for like products,
       services and accommodations in cases not involving insurance.


                                                 -5-
the benefit of his dependents.” MCL 500.3112 (emphasis added). “The word ‘or’ is a
disjunctive term indicating a choice between alternatives.” Jesperson v Auto Club Ins Ass’n, 306
Mich App 632, 643; 858 NW2d 105 (2014). Accordingly, the plain language of the statute
reveals a Legislative intent to allow either the injured person or a party that provided benefits to
an injured person to recover the payment of benefits from an insurer; the injured person is not the
only party who has this right. Consistent with this construction, this Court has held that MCL
500.3112 “specifically contemplates the payment of benefits to someone other than the injured
person,” and recognized that “it is common practice for insurers to directly reimburse health care
providers for services rendered to their insureds.” Lakeland Neurocare Ctrs v State Farm Mut
Auto Ins Co, 250 Mich App 35, 39; 645 NW2d 59 (2002). Therefore, given the text of MCL
500.3112, especially when read in conjunction with MCL 500.3105, 500.3107, and 500.3157,
and this Court’s previous interpretations of the language, we conclude that the statutory scheme
of the no-fault act indicates that the Legislature intended to confer standing on a healthcare
provider to bring a claim against an insurer in order to enforce its right to be reimbursed for
medical services rendered to an injured party insured under the applicable no-fault policy. See
Lansing Sch Ed Ass’n, 487 Mich at 372.

        This conclusion is consistent with other opinions issued by this Court that have
acknowledged the viability of first-party claims brought by healthcare providers.3 Most recently,
after quoting MCL 500.3105(1) and 500.3112 and summarizing the development of the case law
concerning this issue, this Court expressly stated that healthcare providers may bring a direct
action to recover PIP benefits in Wyoming Chiropractic, 308 Mich App 389, ___; ___ NW2d
___ (2014); slip op at 6, holding that “the fact that a healthcare provider is entitled to payment, as
well as the fact that a healthcare provider can sue to enforce the penalty provision of the no-fault


3
  See, e.g., Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, ___ Mich App ___, ___; ___
NW2d ___ (2015); slip op at 3 (“[I]t is . . . well-settled that a medical provider has independent
standing to bring a claim against an insurer for the payment of no-fault benefits.”); Moody v
Home Owners Ins Co, 304 Mich App 415, 440; 849 NW2d 31 (2014) (“[Healthcare] providers
may bring an independent cause of action against a no-fault insurer.”); Michigan Head & Spine
Inst, PC v State Farm Mut Auto Ins Co, 299 Mich App 442, 447-449, 448 n 1; 830 NW2d 781
(2013) (“We note that the language “or on behalf of” in the release is similar to the phrase ‘or for
the benefit of’ in MCL 500.3112, which this Court has recognized creates an independent cause
of action for healthcare providers.” [Citation omitted]); Lakeland, 250 Mich App at 42
(“Plaintiff was a health care provider that had the right to, and did, submit claims for medical
benefits for the benefit of defendant’s insured. Plaintiff’s claims were repeatedly denied, forcing
plaintiff to commence legal action against defendant that led to full recovery of the benefits.”
[Emphasis added.]); id. at 42-43 (“The no-fault act does not, however, accomplish its purpose or
goal by sanctioning actions of no-fault insurers that include unreasonable payment delays and
denials of no-fault benefits that force the commencement of legal action by the injured person’s
health care provider.” [Emphasis added.]); Regents of Univ of Michigan v State Farm Mut Ins
Co, 250 Mich App 719, 733; 650 NW2d 129 (2002) (“Although plaintiffs[, i.e., healthcare
providers who operated a hospital,] may have derivative claims, they also have direct claims for
personal protection insurance benefits.” [Emphasis added.]).


                                                 -6-
act,4 indicates that a healthcare provider may bring a cause of action to recover the PIP benefits
under the no-fault act.” Id. (footnote added).5 Accordingly, in light of the statutory framework
and applicable case law, State Farm’s argument that the healthcare providers do not have
standing to bring causes of action to recover PIP benefits is without merit.

                                                   B

        Next, State Farm argues in both appeals that the healthcare providers’ ability to seek no-
fault PIP benefits is dependent on whether the injured party would be eligible to receive those
PIP benefits. As such, State Farm contends that the trial courts erred in denying its motions for
summary disposition because the medical providers’ claims are barred on the basis that Jackson
and Johnson were ineligible for benefits because they failed to comply with the MEs and EUOs
that State Farm requested and, consequently, failed to provide reasonable proof of a compensable
loss. We agree with State Farm’s general statement of the law, but disagree that the medical
providers’ claims are barred as a matter of law at this stage of the proceedings.

        A review of relevant Michigan caselaw indicates that a healthcare provider’s eligibility to
recover medical expenses is dependent upon the injured party’s eligibility for no-fault benefits
under the insurance policy. Our decision in TBCI, PC v State Farm Mut Auto Ins Co, 289 Mich
App 39; 795 NW2d 229 (2010), is instructive. In that case, the healthcare provider brought suit
seeking payment of personal protection insurance benefits under the no-fault act. Id. at 40. The
plaintiff had provided medical treatment to Eric Afful, who was allegedly injured in a motor
vehicle accident. Id. at 41. State Farm, however, had refused to pay Afful’s claim, contending
that the claims were fraudulent. Id. at 40. Afful filed suit against State Farm, and the jury found
that Afful was not entitled to no-fault benefits on account of his fraudulent conduct. Id. In the
provider’s suit, this Court found that the provider was similarly barred from claiming no-fault
benefits:

         Here, there is no serious dispute whether the judgment in the first case was a final
         judgment on the merits. The jury determined that Afful had submitted a
         fraudulent claim for benefits, and a judgment pursuant to the verdict was entered
         on June 3, 2008. Further, there is no question whether plaintiff's claims were, or
         could have been, resolved in the first lawsuit. This is because the essential
         evidence presented in the first case sustained dismissal of both actions. See Eaton
         Co Rd Comm’rs, 205 Mich App [371, 375; 521 NW2d 847 (1994)]. Plaintiff, by
         seeking coverage under the policy, is now essentially standing in the shoes of
         Afful. Being in such a position, there is also no question that plaintiff, although
         not a party to the first case, was a “privy” of Afful. “A privy of a party includes a
         person so identified in interest with another that he represents the same legal right.


4
    See Lakeland, 250 Mich App at 37-40.
5
 In Wyoming Chiropractic, this Court relied upon the following prior opinions of this Court:
Lakeland, 250 Mich App at 36-39; Regents of the Univ of Mich, 250 Mich App at 731-734; and
Munson, 218 Mich App at 378.


                                                  -7-
       . . .” Begin v Mich Bell Telephone Co, 284 Mich App [581, 599; 773 NW2d 271
       (2009)]. As noted, the jury determined that Afful submitted a fraudulent claim.
       The result under the plain language of the exclusion provision interpreted in the
       first action is that Afful and his privies were not entitled to coverage under the
       policy. Plaintiff is simply attempting to relitigate precisely the same issue in
       order to obtain coverage under the policy. The trial court properly dismissed
       plaintiff’s suit to the extent that it found its claim was barred by res judicata. For
       this reason, plaintiff’s claim of appeal fails. [TBCI, 289 Mich App at 43-44.]

        Similarly, in Bahri v IDS Prop Cas Ins Co, 308 Mich App 420; ___ NW2d___ (2014)
(Docket No. 316869); slip op at 4, this Court found that healthcare providers’ claims for PIP
benefits were barred by the fraudulent conduct of the named insured. Citing TBCI, PC, 289
Mich App at 44, this Court stated, “Because intervening plaintiffs stood in the shoes of the
named insured, if plaintiff cannot recover benefits, neither can intervening plaintiffs.” Id. at ___;
slip op at 3. Accordingly, this Court concluded that “[b]ecause plaintiff’s claim for PIP benefits
is precluded, intervening plaintiffs’ [the providers’] claim for PIP benefits is similarly barred . . .
.” Id. at ___; slip op at 4.

       In Mich Head & Spine Institute v State Farm Mut Auto Ins Co, 299 Mich App 442; 830
NW2d 781 (2013), this Court also acknowledged the interdependence between the claims of a
healthcare provider and an injured party. In that case, the healthcare provider rendered services
and accommodations to Pellumbesha Biba and brought an action against Biba’s no-fault insurer,
State Farm, seeking to recover payment for the benefits that it had rendered. Id. at 445-446. In
exchange for $35,000 and in settlement of ongoing litigation with State Farm, Biba executed a
contract that released State Farm from liability for no-fault benefits incurred to date or which
might be incurred in the future. Id. at 444. Six months after signing the release, Biba began
treatment with the plaintiff, Michigan Head & Spine. Id. at 445. In reliance on the release, State
Farm refused to pay Michigan Head & Spine for its treatment of Biba. Id. at 445. State Farm
appealed the district court’s order granting summary disposition in favor of Michigan Head &
Spine in order to determine “whether an insured’s release bars a healthcare provider’s claim for
payment for medical services rendered to the insured after the release was executed.” Id. at 446,
448. Applying contract principles, this Court held that the plain language of the release
“demonstrated that, in exchange for defendant’s payment of $35,000, the parties intended to
discharge defendant’s liability altogether, including its liability for future medical services.” Id.
Therefore, this Court held that summary disposition should have been granted in the defendant’s
favor. Id. at 450.6



6
  Notably, the services and billings at issue in Mich Head & Spine were incurred and submitted
respectively after the insured entered into a release with the insurer. That case did not address
the situation where an insured receives medical services and the medical provider notifies the
insurer of its right to payment prior to the execution of a release by the insured, a situation that
raises particular issues under the text of MCL 500.3112. See Covenant Med Ctr, ___ Mich App
at ___; slip op at 2-3 (holding that the insured’s liability to a medical provider was not
discharged under such circumstances).


                                                 -8-
        Additionally, in Detroit Med Ctr v Progressive Mich Ins Co, 302 Mich App 392, 399;
838 NW2d 910 (2013), this Court implicitly recognized that a healthcare provider’s claim is
dependent on the injured party’s entitlement to benefits under a no-fault insurance policy,
although it did not directly rule on the issue. The case was initiated by the plaintiff healthcare
provider that treated the injuries of a motorcyclist who was insured by the defendant insurance
company. Id. at 394. The trial court entered judgment in favor of the healthcare provider based
on its conclusion that the motor vehicle associated with the incident was sufficiently involved in
the accident for the plaintiff healthcare provider to recover no-fault benefits. Id. at 394. This
Court held that summary disposition should have been granted in favor of the defendant
insurance company because the motorcyclist was not entitled to personal protection insurance
benefits pursuant to the no-fault act under the facts of the case. Id. at 399.7 Thus, applying the
foregoing principles, we conclude that a healthcare provider’s ability to recover an injured
party’s medical expenses under the no-fault act is dependent upon the insured’s eligibility for
such benefits.8 Accordingly, resolution of the ultimate issue in this case turns on whether the
injured insureds, Jackson and Johnson, would have been entitled to recover first-party PIP
benefits under the insurance policies. For the reasons stated below, we conclude that the district
courts did not err in finding that genuine issues of material fact precluded summary disposition.

        State Farm argues that the district courts’ focus on whether Jackson and Johnson were
involved in the accidents or sustained injures related thereto was misplaced. Instead, according
to State Farm, the courts should have focused on the undisputed fact that the injured parties
failed to submit to the requested MEs and EUOs. State Farm contends that this failure to
cooperate conclusively established that the injured parties were prohibited from seeking no-fault
coverage. We disagree.




7
 This Court’s decision in Moody, 304 Mich App at 440, stating that the providers’ claims were
“completely derivative of and dependent on Moody[] having a valid claim of no-fault benefits
against [the insurer],” is also consistent with the cases discussed above.
8
  Although the specific issue is not before us for decision, in our view, whether an injured party
is eligible for benefits is a different question than whether an injured party may recover benefits
when that injured party fails to timely file a cause of action to recover benefits that the injured
party is eligible to receive. Thus, were the question before us, we would conclude that an injured
party’s failure to timely bring suit would not in and of itself bar a provider’s timely action
against the insured. An injured party may be eligible for benefits under MCL 500.3105(1) even
though his or her claim is barred by the one-year statute of limitations under MCL 500.3145(1).
In such a case, a provider’s claim, which is dependent on the injured party’s eligibility, would be
unaffected. See Moody, 304 Mich App at 440. It is well-settled that each claim in an action is
subject to its own applicable statute of limitations and the untimeliness of one claim does not,
without more, bar another timely-filed claim. Moreover, if the provider’s claim is timely filed,
the purposes of statutes of limitations—to encourage plaintiffs to diligently pursue claims and to
protect defendants from having to defend against stale and fraudulent claim—are satisfied. See
Wright v Rinaldo, 279 Mich App 526, 533; 761 NW2d 114 (2008).


                                                -9-
       In order to resolve this issue, a brief review of the statutes and caselaw addressing MEs
and EUOs is warranted. Beginning with MEs, MCL 500.3151 provides that “when the mental or
physical condition of a person is material to a claim that has been made for past or future
personal protection insurance benefits, the person shall submit to mental or physical examination
by physicians.” MCL 500.3153 addresses the repercussions that may result if a claimant refuses
to comply with a request to submit to an examination. The statute permits a court to enter orders
regarding the refusal that include, but are not limited to:

              (a) An order that the mental or physical condition of the disobedient
       person shall be taken to be established for the purposes of the claim in accordance
       with the contention of the party obtaining the order.

              (b) An order refusing to allow the disobedient person to support or oppose
       designated claims or defenses, or prohibiting him from introducing evidence of
       mental or physical condition.

               (c) An order rendering judgment by default against the disobedient person
       as to his entire claim or a designated part of it.

              (d) An order requiring the disobedient person to reimburse the insurer for
       reasonable attorneys’ fees and expenses incurred in defense against the claim.

               (e) An order requiring delivery of a report, in conformity with section
       3152, on such terms as are just, and if a physician fails or refuses to make the
       report a court may exclude his testimony if offered at trial. [MCL 500.3153.]

Thus, pursuant to MCL 500.3153, a court is authorized to dismiss an insured’s claim for failure
to submit to an examination. Muci v State Farm Mut Auto Ins Co, 478 Mich 178, 189; 732
NW2d 88 (2007). However, no such order was entered in either case.

        This Court’s decision in Roberts v Farmers Ins Exch, 275 Mich App 58, 69; 737 NW2d
332 (2007), is instructive. Roberts indicates that a suspension of benefits is proper if a claimant
repeatedly fails to comply with his or her statutory duty to submit to MEs. In Roberts, after the
insured, Brittany Underwood, repeatedly missed scheduled MEs and failed to pay cancellation
fees, the insurer discontinued first-party no-fault benefits. Id. at 61. This Court, in reviewing the
propriety of the insurer’s actions, held:

               Underwood repeatedly failed or refused to attend the physical and
       psychological IMEs. Underwood therefore breached her statutory duty to “submit
       to mental or physical examination by physicians.” MCL 500.3151. Farmers did
       not conclude that because of Underwood’s breach, benefits were irrevocably
       denied; rather, it merely suspended those benefits until Underwood (1) paid the
       $1,000 cancellation fee and (2) submitted to a psychological IME. Because
       Underwood had breached her statutory duty to submit to IMEs, Farmers had a
       legitimate statutory question, namely, whether a claimant, upon breach of her
       statutory duty to submit to IMEs, remains entitled to continuing PIP benefits. The
       statute provides no penalty for a claimant’s breach of his or her duty to submit to
       IMEs; therefore, Farmers raises a legitimate statutory question regarding the
                                                -10-
       appropriate consequence of Underwood's breach of her statutory duty. Because
       Farmers had a legitimate question of statutory construction, its suspension of
       benefits to Underwood was reasonable. McCarthy[ v Auto Club Ins Ass’n, 208
       Mich App 97, 103; 527 NW2d 524]. We hold that where a claimant repeatedly
       breaches his or her statutory duty to submit to IMEs, an insurer may properly
       suspend benefits pending completion of any requisite IME. Otherwise, an insured
       could breach with impunity his or her duty to submit to IMEs, and the insurer
       would have no way of investigating whether the injury claims were legitimate.

               In addition to the statutory duty to submit to IMEs, Farmers’ no-fault
       policy imposes on a person claiming coverage under the policy a duty to
       “[s]ubmit to physical examinations at our expense by doctors we select as often as
       we may reasonably require.” The policy does not articulate the remedy for breach
       of this duty. The general rule is that a remedy for breach of contract should make
       the nonbreaching party whole or “place the nonbreaching party in as good a
       position as if the contract had been fully performed.” Corl v Huron Castings, Inc,
       450 Mich 620, 625-626; 544 NW2d 278 (1996). Allowing Farmers to suspend
       benefits places Farmers in as good a position as if Underwood had submitted to a
       neuropsychological IME because it puts Farmers in the same position as it would
       be had the IME shown that Underwood lacked a brain injury caused by the
       accident. Whether viewed as a remedy for breach of the statutory duty to submit
       to IMEs or as a remedy for breach of a contractual duty to submit to IMEs, the
       proper remedy is for the insurer to suspend performance of its duties. [Roberts,
       275 Mich App at 68-69 (emphasis added).]

        Thus, pursuant to Roberts, State Farm may reasonably suspend claims by the injured
parties due to a failure to submit to MEs, and a suspension of benefits is not an “irrevocable
denial” of benefits; the eligibility for PIP benefits is simply suspended until compliance with the
ME. Likewise, we conclude that evidence that an injured party failed to submit to an ME that
later results in a suspension of the claim is not tantamount to dispositive evidence that an insured
is not entitled to PIP benefits.

        With regard to the effect of an injured party’s failure to submit to an EUO, the Supreme
Court’s decision in Cruz v State Farm Mut Auto Ins Co, 466 Mich 588; 648 NW2d 591 (2002), is
instructive. In Cruz, the Court held that EUO provisions may be included in no-fault polices, but
they are only enforceable to the extent that they do not conflict with the statutory requirements of
the no-fault act. Id. at 590. Thus, a policy provision requiring a claimant to submit to an EUO
“designed only to ensure that the insurer is provided with the information relating to proof of the
fact and of the amount of the loss sustained . . . would not run afoul of the statute.” Id. at 598.
However, “a no-fault policy that would allow the insurer to avoid its obligation to make prompt
payment upon the mere failure to comply with an EUO would run afoul of the statute and
accordingly be invalid.” Id.

       State Farm contends, inter alia, that the injured parties are ineligible for PIP benefits
because they failed to submit to EUOs. However, taken to its logical extension, State Farm’s
argument, that the failure to submit to an EUO is alone sufficient to render the insured ineligible
for PIP benefits, would cause compliance with EUO provisions to effectively operate as a

                                               -11-
condition precedent to State Farm’s duty to pay no-fault benefits.9 However, utilizing the
compliance with EUO provisions as a condition precedent to the recovery of no fault benefits is
precluded by Cruz, which held that an insurance company and its insured are not permitted to
contract in a manner that vitiates the insurance company’s “duty to pay benefits in a timely
fashion as required by the statute. Once ‘reasonable proof of the fact and of the amount of loss
sustained’ [is] received by [the insurer], it [must] pay benefits or be subject to the penalties.” Id.
at 600. Accordingly, we find that the failure to submit to an EUO does not establish, as a matter
of law, that an injured party is not entitled to no-fault benefits.

        Here, it is apparent that an “irrevocable denial” of benefits had not been issued by State
Farm in either case: State Farm had only suspended Jackson’s claim for benefits due to its
inability to determine whether Jackson was eligible for outstanding or future benefits, and there
is no indication that State Farm took any action following Johnson’s failure to appear at the
EUOs. Therefore, we conclude that the injured parties’ failure to submit to the MEs and EUOs
requested by State Farm did not demonstrate that there is no genuine issue of material fact as to
whether plaintiffs, as the injured parties’ healthcare providers, were entitled to no-fault benefits
as a matter of law, because the injured parties’ failure to comply does not conclusively establish
the ineligibility of the injured parties and plaintiffs’ related inability to recover payment for PIP
benefits from State Farm. State Farm remained statutorily obligated to pay benefits in a timely
manner if the insured parties complied with the requirements of the no-fault act, which includes
submitting to an ME if requested,10 demonstrating that they are eligible for benefits under the
policy,11 and providing “reasonable proof of the fact and of the amount of loss sustained.”12
Viewing the evidence in the light most favorable to the parties opposing the motions for
summary disposition, Calhoun Co, 297 Mich App at 11-12, the medical records proffered by
plaintiffs in the district courts established that there were genuine issues of material fact
regarding whether the injured parties’ claims were causally connected to accidental bodily
injuries arising out of an automobile accident, which involved the use of a motor vehicle.


9
  As State Farm argues in Docket No. 322317, it does appear that the purpose of invoking the
EUO provision was to ensure that it was provided with information regarding Johnson’s
eligibility for PIP benefits under the insurance policy. However, as we explain below, we find
that the injured party’s failure to submit to an EUO or provide other documentation does not
establish, as a matter of law, that the injured party is not entitled to PIP benefits, such that a
healthcare provider is not entitled to receive payment for medical services as a matter of law.
10
     MCL 500.3151.
11
  See Douglas v Allstate Ins Co, 492 Mich 241, 257; 821 NW2d 472 (2012) (stating that MCL
500.3105(1) includes two threshold requirements that a plaintiff must fulfill in order to establish
entitlement to PIP benefits: (1) “the claimed benefits are causally connected to the accidental
bodily injury arising out of an automobile accident,” and (2) the “injuries [arose] out of or [were]
caused by the ownership, operation, maintenance or use of a motor vehicle.”).
12
  See MCL 500.3142 (“Personal protection insurance benefits are overdue if not paid within 30
days after an insurer receives reasonable proof of the fact and of the amount of loss sustained.”
[Emphasis added.]); Cruz, 466 Mich at 600.


                                                -12-
Likewise, the medical records provided by plaintiffs established a genuine issue of material fact
regarding whether plaintiffs had proffered reasonable proof of the fact and of the amount of loss
sustained, such that State Farm was required to pay PIP benefits to plaintiffs. Therefore, because
“reasonable minds could differ on an issue after viewing the record in the light most favorable to
the nonmoving party,” Allison, 481 Mich at 425, and “the evidence submitted ‘might permit
inferences contrary to the facts asserted by the movant,’ ” Dillard, 308 Mich App at ___; slip op
at 9 (citation omitted), the district courts did not err in denying State Farm’s motions for
summary disposition under MCR 2.116(C)(10).

       Our conclusion here is consistent with the public policy goals of the no-fault act. As
discussed by this Court in Wyoming Chiropractic, 303 Mich App at ____; slip op at 8,

       [t]he goal of the no-fault act is “ ‘to provide victims of motor vehicle accidents
       with assured, adequate, and prompt reparation for certain economic losses.’ ”
       The no-fault act was designed to remedy “ ‘long delays, inequitable payment
       structure, and high legal costs’ ” in the tort system. Allowing a healthcare
       provider to bring a cause of action expedites the payment process to the
       healthcare provider when payment is in dispute. [Emphasis added; footnotes
       omitted.]

See also Shavers v Kelley, 402 Mich 554, 621-623; 267 NW2d 72 (1978) (describing operational
deficiencies in the previous tort system and the corresponding changes in the no-fault personal
injury protection system). However, “[i]t is clear that the Legislature did not intend for no-fault
insurers to pay all claims submitted without reviewing the claims for lack of coverage,
excessiveness, or fraud.” Advocacy Org for Patients & Providers v Auto Club Ins Ass’n, 257
Mich App 365, 377- 378; 670 NW2d 569, 577 (2003) (quotation marks and citation omitted).
Although it is evident that the no-fault act balances injured parties’ interests in assured payment
with insurance providers’ interests in ensuring that they do not pay ineligible, excessive, or
fraudulent claims, the statutory scheme and public policy goals of the act demonstrate a
significant emphasis on assured, adequate, and prompt reparation for the victims of motor
vehicle accidents and, correspondingly, those who may claim benefits “for the benefit of an
injured person,” i.e., healthcare providers. See MCL 500.3112. As recognized in Wyoming
Chiropractic, a healthcare provider’s suit for the payment of PIP benefits when payment is in
dispute, even when an injured party has failed to comply with MEs or EUOs, expedites the
payment process, and increases the probability of assured payment, for the healthcare provider.
Likewise, given that plaintiffs are still required to establish the injured parties’ eligibility for
benefits in order to receive payment,13 State Farm’s interest in preventing payment for claims
barred by lack of coverage, excessiveness, or fraud is still preserved. See Advocacy Org, 257
Mich App at 377- 378. Therefore, for the reasons stated above, we hold that the injured parties’



13
   Given that State Farm properly suspended benefits in Docket No. 320288 because Jackson
failed to submit to an ME, plaintiffs, whose claim is derivative and dependent upon Jackson’s
eligibility for benefits, would still be subject to the suspension of benefits until Jackson complied
with the investigation. See Moody, 304 Mich App at 440.


                                                -13-
failure to comply with the MEs and EUOs did not establish that State Farm was entitled to
summary disposition as a matter of law.

                                                 III

        Finally, State Farm argues in Docket No. 322317 that the district court abused its
discretion when it failed to grant its request for leave to amend its affirmative defenses to include
an allegation that Johnson’s ineligibility for no-fault benefits barred plaintiffs’ claims. We agree.

       This Court reviews for an abuse of discretion a trial court’s ruling on a motion for leave
to amend a pleading. Titan Ins Co v North Pointe Ins Co, 270 Mich App 339, 346; 715 NW2d
324 (2006). “An abuse of discretion occurs when the trial court's decision is outside the range of
reasonable and principled outcomes.” Brown v Home-Owners Ins Co, 298 Mich App 678, 690;
828 NW2d 400 (2012) (quotation marks and citation omitted).

       Pursuant to MCR 2.111(F)(3)(b), a party must state the facts constituting “a defense that
by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the
opposing party, in whole or in part[.]” MCR 2.111(F)(3) requires that a party state its
affirmative defenses in its responsive pleading, either as originally filed or as amended pursuant
to MCR 2.118. Further, under MCR 2.118(A)(2), leave to amend pleadings “shall be freely
given when justice so requires.”

       A motion to amend ordinarily should be granted, and should be denied only for
       the following particularized reasons:

               [1] undue delay, [2] bad faith or dilatory motive on the part of the
               movant, [3] repeated failure to cure deficiencies by amendments
               previously allowed, [4] undue prejudice to the opposing party by
               virtue of allowance of the amendment, [and 5] futility. . . .
               [Weymers v Khera, 454 Mich 639, 658; 563 NW2d 647 (1997)
               (quotation marks and citation omitted).]

        In this case, the trial court denied State Farm’s motion to amend on the basis that it failed
to make a legal argument or cite any caselaw indicating that justice required an amendment of
State Farm’s affirmative defenses. As such, the trial court’s reasoning was equivalent to a
finding that the amendment would be futile. “An amendment is futile where, ignoring the
substantive merits of the claim, it is legally insufficient on its face.” Gonyea v Motor Parts Fed
Credit Union, 192 Mich App 74, 78; 480 NW2d 297 (1991). While futility may warrant denying
a motion to amend a pleading, Weymers, 454 Mich at 658, in this case, the proposed amendment
was not necessarily futile. As we explained in Part II.B, a healthcare provider’s ability to
recover medical expenses under the no-fault act depends on whether the injured party is eligible
for such no-fault benefits. Thus, if it were established that Johnson is not eligible for no-fault
benefits, the provider’s cause of action would be precluded. In its brief in support of its motion
to amend its affirmative defenses and for summary disposition, State Farm cited authority in
support of its position that the healthcare providers stand in the shoes of Johnson, such that the
healthcare providers are no more entitled to recover benefits than Johnson. Therefore, to the
extent that State Farm’s proposed amendment included an allegation that Johnson’s ineligibility

                                                -14-
for no-fault benefits barred plaintiff’s claims, State Farm should have been given leave to amend
its answer. Such an affirmative defense, if proven, would, in fact, defeat plaintiffs’ claims.
Therefore, the court abused its discretion when it failed to permit the proposed amendment to
State Farm’s affirmative defenses.

        We affirm the district courts’ orders denying State Farm’s motions for summary
disposition in Docket Nos. 320288 and 322317, reverse the order denying State Farm’s motion to
amend its affirmative defenses in Docket No. 322317, and remand for further proceedings
consistent with this opinion in both appeals. As the prevailing party in Docket No. 320288,
plaintiff may tax costs pursuant to MCR 7.219. No taxable costs in Docket No. 322317, none of
the parties having prevailed in full. We do not retain jurisdiction.



                                                           /s/ Kurtis T. Wilder
                                                           /s/ Douglas B. Shapiro
                                                           /s/ Amy Ronayne Krause




                                              -15-
