               If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                    revision until final publication in the Michigan Appeals Reports.




                             STATE OF MICHIGAN

                              COURT OF APPEALS



MICHIGAN INSTITUTE OF PAIN AND                                        UNPUBLISHED
HEADACHE, PC, doing business as METRO                                 May 21, 2019
PAIN CLINIC,

                 Plaintiff-Appellant,

v                                                                     No. 343263
                                                                      Oakland Circuit Court
ALLSTATE INSURANCE COMPANY,                                           LC No. 2017-159642-NF

                 Defendant-Appellee.


Before: REDFORD, P.J., and MARKEY and K. F. KELLY, JJ.

PER CURIAM.

        Plaintiff is a healthcare provider that treated a father and his daughter, who were injured
in a motor vehicle accident. Defendant was the no-fault insurer responsible for providing
personal protection insurance (PIP) benefits. The injured persons assigned their rights to no-fault
benefits to plaintiff. The trial court granted defendant’s motion for summary disposition under
MCR 2.118(C)(8). Citing Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191;
895 NW2d 490 (2017), the trial court ruled that”[b]ecause a health care provider possesses no
statutory cause of action under the no-fault act[, MCL 500.3101 et seq.,] against a no-fault
insurer for recovery of PIP benefits, dismissal is appropriate.” We reverse and remand for
further proceedings.

        In plaintiff’s complaint, it alleged that “[a]ll rights, privileges and remedies to payment
for health care services, products or accommodations provided . . . to the injured parties, . . . for
which the injured parties are or may be entitled to under . . . the No Fault Act, have been
assigned to Plaintiff, hereto attached as Exhibit A.” Plaintiff, however, apparently neglected to
attach any assignments to its complaint.1 Subsequently, defendant moved for summary
disposition under MCR 2.116(C)(8) arguing that Covenant barred plaintiff’s lawsuit. Defendant


1
    The complaint in the electronic lower court record does not have any exhibits attached to it.



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also noted that no assignments were attached to plaintiff’s complaint. At the hearing on
defendant’s motion for summary disposition, plaintiff’s counsel indicated her belief that the
assignments had been attached to the complaint. But to the extent that they were not attached,
counsel requested that the court allow her to amend the complaint to attach the assignments.2
The trial court took the matter under advisement and later issued its opinion granting defendant’s
motion on the strength of Covenant. The court made no mention of plaintiff’s request to amend
its complaint to add the assignments as exhibits. It is clear from the trial court’s ruling and the
record that the failure to attach the assignments to the complaint played no role in the court’s
decision. The trial court later denied plaintiff’s motion for reconsideration.

        We review de novo a trial court's ruling on a motion for summary disposition. Loweke v
Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011). MCR
2.116(C)(8) provides for summary disposition when a “party has failed to state a claim on which
relief can be granted.” MCR 2.116(C)(8) tests the legal sufficiency of a complaint. Beaudrie v
Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). A trial court may only consider the
pleadings in rendering its decision. Id. All factual allegations in the complaint must be accepted
as true. Dolan v Continental Airlines/Continental Express, 454 Mich 373, 380-381; 563 NW2d
23 (1997). “The motion should be granted if no factual development could possibly justify
recovery.” Beaudrie, 465 Mich at 130.

        In Covenant, 500 Mich at 196, our Supreme 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.” But the Supreme Court, citing MCL 500.3143 and
Prof Rehab Assoc v State Farm Mut Auto Ins Co, 228 Mich App 167, 172; 577 NW2d 909
(1998), made clear that its “conclusion . . . is not intended to alter an insured’s ability to assign
his or her right to past or presently due benefits to a healthcare provider.” Covenant, 500 Mich at
217 n 40. And in W A Foote Mem Hosp v Mich Assigned Claims Plan, 321 Mich App 159, 195;
909 NW2d 38 (2017), this Court noted “that providers have always been able to seek
reimbursement from their patients directly or to seek assignment of an injured party’s rights to
past or presently due benefits . . . .” Accordingly, contrary to the trial court’s ruling, we
conclude that plaintiff was generally entitled to pursue an action for no-fault benefits against
defendant on the basis of the assignments. We, however, must address some additional issues
and arguments.

       Plaintiff was required to attach the assignments to the complaint because its claim was
“based on a written instrument.” MCR 2.113(C)(1).3 An attached written instrument becomes
“part of the pleading for all purposes.” MCR 2.113(C)(2). Summary disposition may be
appropriate under MCR 2.116(C)(8) when a written instrument is not attached to a complaint as
required. Liggett Restaurant Group, Inc v City of Pontiac, 260 Mich App 127, 133; 676 NW2d


2
  The assignments were attached to plaintiff’s brief in response to defendant’s motion for
summary disposition.
3
 This provision was found in MCR 2.113(F)(1) at the time of the lower court proceedings before
our Supreme Court amended the court rule effective September 1, 2018. 501 Mich.


                                                -2-
633 (2004). Despite plaintiff’s failure to attach the assignments to its complaint, plaintiff asked
the court for an opportunity to amend the complaint to add the assignments. And MCR
2.116(I)(5) provides that “[i]f the grounds asserted [for summary disposition] are based on
subrule (C)(8), (9), or (10), the court shall give the parties an opportunity to amend their
pleadings as provided by MCR 2.118, unless the evidence then before the court shows that
amendment would not be justified.” (Emphasis added.) “Leave shall be freely given when
justice so requires.” MCR 2.118(A)(2). Leave to amend is typically a matter of right rather than
of grace; therefore, leave to amend should ordinarily be denied only for particularized reasons
such as futility, undue delay, bad faith, dilatory motive, or repeated failures to cure by
amendments previously allowed. Bennett v Russell, 322 Mich App 638, 647; 913 NW2d 364
(2018). Keeping in mind these principles, we conclude there was no reason not to grant
plaintiff’s request to amend its complaint to add the assignments as attachments to the
complaint.4

        Defendant, however, maintains that any amendment would be futile because the
assignments were only partial assignments and because the insurance policy at issue prohibited
the insureds from transferring the policy to anyone without defendant’s consent, which was
never given. In Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich App 182, 200;
920 NW2d 148 (2018), this Court held that an anti-assignment clause was “unenforceable to
prohibit the assignment that occurred [in the case]—an assignment after the loss occurred of an
accrued claim to payment—because such a prohibition of assignment violates Michigan public
policy . . . .” This Court subsequently reaffirmed the holding in Shah. Henry Ford Health Sys v
Everest Nat’l Ins Co, __ Mich App __, __; __ NW2d __ (2018); slip op at 4 (“Accordingly, we
must conclude that the anti-assignment clause in defendant’s policy is unenforceable because it
is contrary to public policy.”). Furthermore, the Henry Ford panel rejected the partial-
assignment argument defendant proffers us here, concluding that if it “were to hold that the
assignment . . . was an unenforceable partial assignment, it would effectively render the insured’s
right to assign a claim for past or presently due benefits meaningless.” Id. at __; slip op at 6.5
Shah and Henry Ford constitute binding case law. MCR 7.215(J)(1).6



4
  Again, it appears that the trial court was prepared to grant the motion for summary disposition
regardless of the assignments, attached or not. The court overlooked the plain and unambiguous
language in Covenant allowing healthcare providers to file suit against no-fault insurers based on
assignments by injured insureds.
5
  Defendant also argues that plaintiff cannot maintain a third-party beneficiary contract claim
against defendant. Plaintiff emphatically stated in the trial court and does so again on appeal that
it did not plead a third-party beneficiary claim. Accordingly, it is clear that plaintiff is not
appealing that portion of the trial court’s opinion and order dismissing any third-party
beneficiary claim against defendant. Therefore, we need not further discuss the issue.


6
  We recognize that the Michigan Supreme Court has ordered the scheduling of oral argument on
the application for leave to appeal in Shah for the purpose of addressing the issue concerning the


                                                -3-
        We reverse and remand for further proceedings consistent with this opinion. We do not
retain jurisdiction. Having fully prevailed on appeal, we award taxable costs to plaintiff pursuant
to MCR 7.219.

                                                            /s/ James Robert Redford
                                                            /s/ Jane E. Markey
                                                            /s/ Kirsten Frank Kelly




validity of anti-assignment clauses. 503 Mich 882 (2018). But as of today, Shah remains binding
precedent.


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