                          STATE OF MICHIGAN

                            COURT OF APPEALS



ST. JOHN MACOMB OAKLAND HOSPITAL,                                    FOR PUBLICATION
                                                                     December 8, 2016
               Plaintiff-Appellant,                                  9:00 a.m.

v                                                                    No. 329056
                                                                     Macomb Circuit Court
STATE FARM MUTUAL AUTOMOBILE                                         LC No. 2014-002692-NF
INSURANCE COMPANY,

               Defendant-Appellee.


Before: JANSEN, P.J., and CAVANAGH and BOONSTRA, JJ.

JANSEN, P.J.

       Plaintiff appeals as of right the order granting defendant’s motion for reconsideration and
dismissing the case. We reverse and remand for further proceedings consistent with this opinion.

                          I. FACTS AND PROCEDURAL HISTORY

        This case arises from injuries sustained by the insured, Nuo Dusaj, during a December 9,
2011 car accident. Dusaj maintained a policy of no-fault insurance with defendant, and he had
coordinated no-fault insurance and health insurance. His no-fault policy provided that the no-
fault benefits would be reduced by an amount “paid or payable” under Dusaj’s health insurance
plan. Dusaj suffered a closed head injury during the accident, and a physician recommended that
Dusaj be admitted to plaintiff’s partial day hospitalization program for closed head injuries.
Dusaj was admitted to the program, and plaintiff filed a claim with Dusaj’s health insurer, Blue
Cross Blue Shield of Michigan (Blue Cross), for payment of benefits for services Dusaj received
starting on May 6, 2013.

        On November 14, 2013, Magellan Behavioral of Michigan, Inc. (Magellan), which was
authorized to administer Blue Cross’s mental health program, sent a letter to Dusaj, informing
him that the partial hospitalization treatment was not medically necessary and that Magellan was
unable to authorize the treatment. The letter explained that a physician advisor, who is a board
certified psychiatrist, came to that determination after reviewing the medical record. The letter
further indicated that an internal appeal was available as the first step in the appeals process and
that a patient, provider, or facility may request an appeal.




                                                -1-
         An attached document detailed the provider appeal rights. The document explained that a
provider may request an internal appeal within 180 days after receipt of the denial letter and that
a determination would be made within 30 calendar days. The document indicated that “[i]f
treatment services are imminent or ongoing, or the patient’s condition is unstable or emergent, an
expedited appeal may be requested verbally and conducted telephonically. . . . We reply to
urgent appeals within the lesser of one business day or 72 hours.” The document further stated
that if the provider disagrees with the internal appeal determination, the provider may request an
external review within 30 calendar days of the appeal decision letter. An independent review
organization would then review the request, and the provider would be notified of the decision
within 30 days of the receipt of the request.

       On January 9, 2014, a representative for plaintiff sent a letter to Magellan, indicating that
a similar denial letter was needed with regard to an October 22, 2012 partial hospitalization
admission in order for plaintiff to request that defendant pay for the partial hospitalization
treatment related to the October 22, 2012 admission.

        After seeking payment from defendant, plaintiff filed a complaint in the trial court,
contending that defendant breached the no-fault contract by refusing to pay no-fault benefits for
the medical services plaintiff provided to Dusaj. Defendant filed a motion for summary
disposition under MCR 2.116(C)(10), contending that plaintiff failed to make reasonable efforts
to obtain payment from Blue Cross/Magellan. Defendant argued that plaintiff failed to provide
any evidence regarding what plaintiff submitted to Blue Cross/Magellan or that plaintiff sought
an appeal of the medical necessity determination.

        Plaintiff filed a response opposing defendant’s motion for summary disposition, in which
plaintiff contended that its January 9, 2014 follow-up letter to Magellan demonstrated that it
made reasonable efforts, but that Blue Cross/Magellan refused to pay for the services. The court
issued an opinion and order denying defendant’s motion for summary disposition on the basis
that there was a genuine issue of material fact on the issue of reasonable efforts. The court
reasoned as follows:

               Defendant, in effect, argues that plaintiff has just not tried hard enough to
       convince [Blue Cross] to pay for the medical treatments, and in this regard is
       therefore not entitled to benefits from State Farm. It appears that plaintiff hospital
       was not convinced that [Blue Cross]/Magellan’s multi-tiered appeal process was
       going to net them any beneficial results. Plaintiff was not seeking duplicative
       coverage, and it made reasonable efforts to obtain payments from [Blue
       Cross]/Magellan to no avail. The Court finds a question of fact as to whether
       plaintiff hospital made reasonable efforts to obtain payments, and whether the
       multi-tiered review and appeal process could be considered beyond reasonable.

       Defendant subsequently filed a motion for reconsideration, arguing that plaintiff failed to
submit evidence showing that it made reasonable efforts to obtain payment from Blue
Cross/Magellan and contending that the court’s prior opinion improperly shifted the burden of
proof onto defendant to demonstrate that Blue Cross/Magellan made an incorrect determination
and that Blue Cross’s policy should cover plaintiff’s claim. The court agreed, and in a two-page
opinion and order, the court determined that it had improperly shifted the burden of proof onto

                                                -2-
defendant and that plaintiff failed to present any evidence demonstrating that it made reasonable
efforts to obtain payment from Blue Cross/Magellan. Therefore, the court granted the motion for
reconsideration and dismissed the case.

                                 II. STANDARD OF REVIEW

        We review for an abuse of discretion a trial court’s decision on a motion for
reconsideration. Frankenmuth Ins Co v Poll, 311 Mich App 442, 445; 875 NW2d 250 (2015). “
‘An abuse of discretion occurs when the trial court’s decision falls outside the range of
reasonable and principled outcomes.’ ” Id. (citation omitted). We review de novo the trial
court’s ruling on a motion for summary disposition. Id. “The trial court properly grants a
motion for summary disposition under MCR 2.116(C)(10) when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.” Id.

       When a motion under subrule (C)(10) is made and supported as provided in this
       rule, an adverse party may not rest upon the mere allegations or denials of his or
       her pleading, but must, by affidavits or as otherwise provided in this rule, set forth
       specific facts showing that there is a genuine issue for trial. If the adverse party
       does not so respond, judgment, if appropriate, shall be entered against him or her.
       [MCR 2.116(G)(4).]

                         III. REASONABLE EFFORTS STANDARD

       The issue presented in this case is whether plaintiff supplied evidence that it made
reasonable efforts to obtain payments that were available from Blue Cross/Magellan before
seeking benefits from defendant. Specifically, the parties dispute whether plaintiff was required
to appeal Blue Cross/Magellan’s medical necessity determination before seeking payment from
defendant. Plaintiff argues that the trial court abused its discretion when it granted defendant’s
motion for reconsideration and dismissed the case, and that plaintiff was not required to appeal
the denial of its claim for health insurance benefits. We agree.

       The trial court dismissed the case following reconsideration of its opinion and order
denying defendant’s motion for summary disposition. MCR 2.119(F), the court rule governing
motions for reconsideration, provides:

              (1) Unless another rule provides a different procedure for reconsideration
       of a decision . . . a motion for rehearing or reconsideration of the decision on a
       motion must be served and filed not later than 21 days after entry of an order
       deciding the motion.

               (2) No response to the motion may be filed, and there is no oral argument,
       unless the court otherwise directs.

              (3) Generally, and without restricting the discretion of the court, a motion
       for rehearing or reconsideration which merely presents the same issues ruled on
       by the court, either expressly or by reasonable implication, will not be granted.
       The moving party must demonstrate a palpable error by which the court and the

                                                -3-
       parties have been misled and show that a different disposition of the motion must
       result from correction of the error.

       The issue in this case is governed by the no-fault act, MCL 500.3101 et seq. 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.” MCL 500.3107(1)(a)
adds, in part, that personal protection insurance (PIP) benefits are payable for “[a]llowable
expenses consisting of all reasonable charges incurred for reasonably necessary products,
services and accommodations for an injured person’s care, recovery, or rehabilitation.”

        MCL 500.3109a provides that an individual may coordinate his no-fault insurance policy
and health insurance policy at a reduced premium rate. MCL 500.3109a; Farm Bureau Gen Ins
Co v Blue Cross Blue Shield of Mich, 314 Mich App 12, 21; 884 NW2d 853 (2015). “The intent
of [MCL 500.3109a] is to eliminate duplicative recovery for services and to contain insurance
and healthcare costs.” Farm Bureau, 314 Mich App at 21. When an individual chooses to
coordinate his no-fault coverage and health insurance coverage, the health insurer becomes
primarily liable for medical expenses. Id. In that circumstance, the no-fault insurer is not liable
for the medical expenses that the health insurer is required to pay for or provide. Tousignant v
Allstate Ins Co, 444 Mich 301, 303; 506 NW2d 844 (1993). Thus, the individual is required to
obtain payment from the health insurer “to the extent of the health coverage available from the
health insurer.” Id. at 307 (emphasis added). Our Supreme Court has stated that the term
“payable,” which appears in the no-fault contract at issue in this case, is the functional equivalent
of the phrase “required to be provided.” Id. at 312. In Tousignant, our Supreme Court cited its
previous decision in Perez v State Farm Mut Auto Ins Co, 418 Mich 634, 645; 344 NW2d 773
(1984), for the proposition that the phrase “required to be provided” “means that the injured
person is obliged to use reasonable efforts to obtain payments that are available.” Id. (quotation
marks omitted). Thus, a plaintiff must make reasonable efforts to obtain payments that are
available from the health insurer in order for the plaintiff to establish that the benefits are not
payable by the health insurer. See id.

        The parties dispute what actions plaintiff was required to take in order to establish that it
made reasonable efforts to obtain payment from Blue Cross. In Tousignant, the plaintiff
coordinated her no-fault insurance with her health insurance, which was provided through a
health maintenance organization (HMO). Tousignant, 444 Mich at 303-304. The plaintiff
sought treatment outside of her HMO plan. Id. at 305. The no-fault insurer informed the
plaintiff that it would only cover medical care by a physician outside of the HMO if a physician
within the HMO referred her to the out-of-network physician. Id. The plaintiff did not contend
that necessary care was unavailable. Id. The no-fault insurer refused to pay for the services,
contending that the services were required to be provided by the HMO. Id. Our Supreme Court
concluded that because the plaintiff did not claim that the HMO would not or could not provide
the medical care she needed, there was no basis for concluding that the benefits were not
required to be provided by the health insurer. Id. at 312-313.

        The Court’s decision in Tousignant suggests that a plaintiff must take some action toward
receiving payment from the health insurer before seeking payment from the no-fault insurer.
However, the Court did not specify the exact actions that a plaintiff must take in order to

                                                -4-
establish that the plaintiff made reasonable efforts to obtain payment from the health insurer.
The plaintiff in Tousignant made no efforts to obtain available benefits from her HMO, thus
leading our Supreme Court to hold that there was no basis to conclude that the benefits were not
available. See Tousignant, 444 Mich at 312-313. In contrast, in this case, plaintiff did attempt to
obtain payment of medical expenses when it filed a claim with Blue Cross/Magellan. The denial
letter indicates that plaintiff submitted medical records to Blue Cross/Magellan, which a
physician reviewed in determining that the treatment was not medically necessary. There is no
indication that plaintiff failed to follow the proper procedure for filing the claim. Following the
denial of the claim, plaintiff contended that the partial day hospitalization treatment was
unavailable because Blue Cross/Magellan denied its claim under a medical necessity standard.
Plaintiff did not seek duplicative recovery from Blue Cross and defendant, but instead, sought to
obtain payment from the insured’s no-fault insurer after the insured’s health insurer denied
payment. Accordingly, we conclude that plaintiff made reasonable efforts to obtain payment
from Blue Cross/Magellan and that plaintiff was not required to appeal the medical necessity
determination in order to establish that it made reasonable efforts to obtain payments that were
available from the health insurer.

        We find that the reasoning in this Court’s recent opinion in Adanalic v Harco Nat’l Ins
Co, 309 Mich App 173, 176-178; 870 NW2d 731 (2015), applies in this context. In Adanalic,
this Court decided the issue whether a no-fault insurer was excused from paying benefits because
the plaintiff had a workers’ compensation claim that he could pursue even after an initial denial
of workers’ compensation benefits. Id. at 184-185. Both the no-fault insurer and the workers’
compensation insurer denied the plaintiff benefits for his injuries. Id. at 178. The relevant
statute at issue in the case provided that when workers’ compensation benefits are available to an
employee sustaining an injury in the course of employment, then no-fault benefits are not
available. Id. at 186.

        Although the issue in Adanalic did not involve the reasonable efforts standard, this Court
briefly discussed the reasonable efforts requirement, stating that the standard “ ‘does not, in light
of the underlying purpose of the no-fault act, call for a potentially lengthy and costly effort . . . .’
” Adanalic, 309 Mich App at 186 n 8, quoting Perez, 418 Mich at 650.1 This statement leads us
to conclude that a plaintiff does not need to engage in the potentially lengthy and costly effort of
challenging a medical necessity determination in order to obtain health insurance benefits before
proceeding to obtain payment from the no-fault insurer.

        Further, in determining whether the no-fault insurer was responsible for payment of the
plaintiff’s expenses, this Court reasoned as follows:




1
  Although Adanalic involved workers’ compensation benefits, our Supreme Court in Tousignant
cited its earlier decision in Perez in articulating the reasonable efforts standard, suggesting that
the standard is the same in both contexts. See Tousignant, 444 Mich at 312; Perez, 418 Mich at
645-646 (opinion by LEVIN, J.).


                                                  -5-
               Both the workers’ compensation system and the no-fault system are
       intended to provide limited, but prompt payment of benefits to injured persons in
       order to assure medical care, rehabilitation, and income replacement. It is [the no-
       fault insurer’s] position that when the employer and the no-fault insurer disagree
       on which of these two systems is primarily applicable, the injured person is to
       receive no benefits at all until each of the two insurers is satisfied that its assertion
       of denial has been fully adjudicated. We reject the notion that because an
       individual may be covered by two broad systems of insurance, he is not entitled to
       any benefits whatsoever for however long it takes to adjudicate a dispute about
       which system is obligated to provide benefits. Indeed, requiring an employee to
       engage in lengthy workers’ compensation litigation before being paid PIP benefits
       “is wholly inadequate to accomplish the no-fault act’s purpose of providing
       assured, adequate, and prompt recovery for economic loss arising from motor
       vehicle accidents.” [Adanalic, 309 Mich App at 187 (citation omitted; emphasis
       added).]

This Court went on to explain that the term “available” was used in order to prevent duplicative
recovery under both workers’ compensation and no-fault insurance, and that there was no
duplicative recovery because the plaintiff was denied workers’ compensation benefits. Id. at
188. Accordingly, this Court concluded that workers’ compensation benefits were not available
and that the plaintiff’s no-fault insurer was not entitled to withhold payment of PIP benefits. Id.
at 189.

        Although this Court’s decision in Adanalic involved workers’ compensation benefits, its
reasoning applies equally in this case. As in Adanalic, plaintiff did not receive payment because
neither insurer took responsibility for payment of the insured’s medical expenses. The purpose
of the no-fault act cannot be met by requiring an injured person to engage in a potentially lengthy
appeals process with the health insurance company. Defendant’s position would prevent an
injured person from receiving benefits from the no-fault insurer until the insured adjudicated the
health insurer’s denial. This is entirely at odds with the policy underlying the no-fault act to
ensure prompt payment for economic losses. Further, the purpose of the coordinated benefits
statute is to prevent duplicative recovery, and plaintiff would not receive benefits from two
sources in this case because Blue Cross/Magellan denied plaintiff’s claim. Therefore, we
conclude that a plaintiff is not required to appeal a health insurer’s medical necessity
determination in order to establish that reasonable efforts were made to obtain payment from the
health insurer.

       Defendant relies, in large part, on this Court’s recent decision in Farm Bureau for the
proposition that plaintiff was required to appeal the denial. In Farm Bureau, the insured, Judy
Klein, received skilled-nursing services from Spectrum Health Rehab and Nursing Center
(Spectrum). Farm Bureau, 314 Mich App at 14. Klein’s health insurer was Blue Cross, and
Blue Cross had a participation agreement with Spectrum under which Spectrum assumed
financial responsibility for the services that it provided to the insured. Id. The agreement
required Spectrum to follow Blue Cross’s preauthorization requirements and detailed the appeals
process for an initial denial of a preauthorization request. Id. at 16. Blue Cross approved and
paid for 14 days of skilled-nursing treatment, but denied Spectrum’s request for additional time.


                                                 -6-
Id. at 14-15. Instead of appealing that decision, Spectrum submitted the claim to Farm Bureau,
which was Klein’s no-fault insurer. Id. at 15. Farm Bureau paid under protest. Id.

        This Court concluded that under the “unique circumstances” in the case involving
Spectrum’s assumption of liability for the medical expenses, neither the no-fault insurer nor the
health insurer was responsible for payment of the medical expenses. Farm Bureau, 314 Mich
App at 20-21. This Court explained that the provisions in the agreement between Blue Cross and
Spectrum were dispositive because Spectrum had agreed to assume full financial responsibility
for claims that were denied as medically unnecessary, unless the insured accepted financial
responsibility in writing. Id. at 23. This Court explained that “with respect to Farm Bureau, the
effect of Spectrum’s participating provider agreement is to relieve Klein from responsibility for
paying for Spectrum’s services, and, because Klein has no legal responsibility for the medical
costs, Farm Bureau has no obligation to pay for these expenses under MCL 500.3107(1)(a).” Id.

         This Court noted, during its discussion of the issue, that although there were mechanisms
permitting Klein or Spectrum to contest the denial of the preauthorization request, neither Klein
nor Spectrum challenged the denial. Farm Bureau, 314 Mich App at 24. Indeed, the evidence in
the record suggested that Spectrum did not seek an appeal of the denial because there was a
secondary insurer. Id. at 24 n 3. This Court explained, “Spectrum’s decision not to contest Blue
Cross’s medical necessity denial and its decision not to seek preapproval at a later time does not,
without the assumption of liability by Klein, render Farm Bureau liable as a secondary payer.”
Id. at 24-25. Instead, since Klein did not have any legal responsibility for the payment, the
payment was not “incurred” by her, and Farm Bureau was not liable as Klein’s no-fault insurer.
Id. at 25.

        Farm Bureau does not control the outcome in this circumstance because the dispositive
fact in Farm Bureau was Spectrum’s contract with Blue Cross. This Court concluded that
because Spectrum contracted with Blue Cross to assume financial liability for the claim, the
insured party did not “incur” the expense, and, therefore, Farm Bureau was not liable for the
expense under MCL 500.3107(1)(a). Farm Bureau, 314 Mich App at 23. In contrast, there is no
indication that plaintiff had a similar participation agreement with Blue Cross or Magellan
indicating that plaintiff would assume full financial responsibility for medical services deemed
medically unnecessary. Although this Court in Farm Bureau mentioned the fact that Spectrum
did not appeal the medical necessity determination, this Court’s discussion of the issue pertained
to the fact that Spectrum could have attempted to avoid liability under the provider agreement by
seeking an appeal of Blue Cross’s decision. Id. at 24 n 3. This Court did not suggest that an
insured person or a provider must seek an appeal of a health insurer’s decision in order to pursue
payment from a no-fault insurer. Instead, the holding of Farm Bureau is limited to the “unique
circumstance” of the provider agreement between Spectrum and Blue Cross. Accordingly, Farm
Bureau does not require that an individual or a provider appeal a medical necessity determination
in order to establish that reasonable efforts were made to obtain payments that were available
from the health insurer.

                           IV. MOTION FOR RECONSIDERATION

        We conclude that the trial court abused its discretion by granting the motion for
reconsideration. The court improperly concluded that it shifted the burden of proof onto

                                                -7-
defendant in its previous opinion. Instead, in its initial opinion and order, the court noted that
plaintiff presented evidence regarding whether it made reasonable efforts to obtain payment from
Blue Cross/Magellan. The trial court’s initial conclusions did not constitute improper burden
shifting. The court also erroneously concluded, without explanation, that plaintiff failed to
present evidence establishing that it made reasonable efforts to obtain payment from Blue
Cross/Magellan. Contrary to the trial court’s determination, plaintiff presented evidence
establishing that it sought payment from Blue Cross/Magellan and that its claim for benefits was
denied on the basis that the treatment was not medically necessary. We therefore conclude that
plaintiff presented sufficient evidence to establish that it made reasonable efforts to obtain
payment from Blue Cross/Magellan. We further conclude that plaintiff was not required to
present evidence that it appealed the denial in order to establish that it made reasonable efforts to
obtain payment from Blue Cross/Magellan. To conclude otherwise would be contrary to the
purpose of the no-fault act to provide for assured, adequate, and prompt recovery for economic
losses stemming from motor vehicle accidents.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.


                                                              /s/ Kathleen Jansen
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Mark T. Boonstra




                                                -8-
