                        STATE OF MICHIGAN

                         COURT OF APPEALS



ROBERT SEAY,                                     UNPUBLISHED
                                                 October 24, 2017
           Plaintiff,
and

ELITE CHIROPRACTIC, PC AND ELITE
HEALTH CENTERS, INC.,

           Intervening Plaintiffs-Appellants,
and

AMERICAN ANESTHESIA ASSOCIATES,
LLC,

           Intervening Plaintiff,

v                                                No. 330099
                                                 Wayne Circuit Court
21ST CENTURY INSURANCE COMPANY,                  LC No. 14-000520-NI

           Defendant-Appellee,
and

CHERYL A. BROOKS and JANE DOE,

           Defendants.



ROBERT SEAY,

           Plaintiff-Appellee,
and

ELITE CHIROPRACTIC, PC, and ELITE
HEALTH CENTERS, INC.,

           Intervening Plaintiffs-
           Appellees/Cross-Appellants,
and

                                           -1-
AMERICAN ANESTHESIA ASSOCIATES, LLC,

               Intervening Plaintiff,

v                                                                    No. 333626
                                                                     Wayne Circuit Court
21ST CENTURY INSURANCE COMPANY,                                      LC No. 14-000520-NI

               Defendant-Appellant/Cross-
               Appellee,
and

CHERYL A. BROOKS and JANE DOE,

               Defendants.



Before: SAAD, P.J., and SERVITTO and GADOLA, JJ.

PER CURIAM.

        In Docket No. 330099, intervening plaintiffs, Elite Chiropractic, PC and Elite Health
Centers, Inc. (hereinafter “Elite” jointly), appeal as of right the judgment of no cause of action in
favor of defendant, 21st Century Insurance Company, in this action to recover personal injury
protection benefits (“PIP” benefits) under the no-fault act, MCL 500.3101 et seq. In Docket No.
333626, 21st Century appeals as of right the order denying its request for case evaluation
sanctions against plaintiff, Robert Seay. On cross-appeal, Elite appeals from this same order the
grant of sanctions in favor of 21st Century in the amount of $25,000 against Elite under MCL
500.3148(2). We affirm in part and reverse in part and remand.

                                     I. DOCKET NO. 330099

                                        A. DUE PROCESS

        As an intervening plaintiff, Elite contends that it was deprived of due process by its
preclusion from directly participating in voir dire and in not being permitted by the trial court to
make an opening statement. Elite contends that despite sharing certain common interests with
Seay, it also had different or contrary interests that it should have been permitted to
independently pursue before the jury. Elite asserts that had it been allowed to participate in voir
dire, the difficulties that arose following the empanelment of the jury and leading to the dismissal
of a juror may have been avoided.

       “Generally, an issue is not properly preserved if it is not raised before, addressed, or
decided by the circuit court or administrative tribunal.” Polkton Charter Twp v Pellegrom, 265
Mich App 88, 95; 693 NW2d 170 (2005). At the initiation of trial, procedural issues were raised

                                                -2-
regarding whether counsel for the intervening parties would be permitted to ask questions on voir
dire, present an opening statement and question witnesses during the trial. The trial court
indicated that separate trials were not being conducted, therefore counsel for Seay and counsel
for Elite needed to coordinate their efforts to avoid unnecessary duplication in questioning
witnesses. Counsel did not object to the methodology or procedure, as set forth by the trial court,
or suggest that Elite was being denied due process. As such, the issue as stated is not properly
preserved for appellate review.

       “Statutory interpretation is a question of law, which this Court reviews de novo.” New
Properties, Inc v George D Newpower, Jr, Inc, 282 Mich App 120, 138; 762 NW2d 178 (2009).
Similarly, constitutional issues are reviewed de novo. Van Buren Twp v Garter Belt, Inc, 258
Mich App 594, 602; 673 NW2d 111 (2003). In contrast:

       Review of an unpreserved error is limited to determining whether a plain error
       occurred that affected substantial rights. To avoid forfeiture under the plain-error
       rule, three requirements must be met: (1) an error must have occurred; (2) the
       error was plain, i.e., clear or obvious, and (3) the plain error affected substantial
       rights. [Rivette v Rose-Molina, 278 Mich App 327, 328-329; 750 NW2d 603
       (2008) (citations omitted).]

         At the outset, we find it necessary to recognize our Supreme Court’s recent decision in
Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, ___ Mich ___; 895 NW2d 490 (2017)
(Docket No. 152758). The ruling in Covenant, while issued after the trial court’s decision in this
litigation, serves to upend many of the positions asserted and arguments proffered in this matter.
Specifically, the ruling in Covenant conflicts with Elite’s suggestion regarding a violation of due
process. Our Supreme Court has ruled that a “review of the statutory no-fault scheme reveals no
support for an independent action by a healthcare provider against a no-fault insurer.” Id.; slip
op at 2. The Court found that although MCL 500.3112 “permits a no-fault insurer to discharge
its liability to an injured person by paying a healthcare provider directly, on the injured person’s
behalf,” the provision does “not grant healthcare providers a statutory cause of action against
insurers to recover the costs of providing products, services, and accommodations to an injured
person.” Id. And, in W A Foote Mem Hosp v Michigan Assigned Claims Plan, __Mich App__;
__NW2d__(2017) this Court undertook an extensive and detailed analysis of the Covenant
decision, ultimately concluding that Covenant is to be applied retroactively.

        Given our Supreme Court’s ruling that healthcare providers lack standing under the no-
fault scheme to pursue an independent action against an insurer, a due process claim is not
viable. “To have standing, a party must have a legally protected interest that is in jeopardy of
being adversely affected.” Dep’t of Treasury v Comerica Bank, 201 Mich App 318, 329-330;
506 NW2d 283 (1993). In accordance with Covenant, Elite lacks a “legally protected interest.”
Regardless, even before the rulings in Covenant and W A Foote Mem Hosp, Elite’s contention
lacked merit.

        In accordance with MCR 2.507(F): “The court may limit the time allowed each party for
opening statements and final arguments. It shall give the parties adequate time for argument,
having due regard for the complexity of the action, and may make separate time allowances for
co-parties whose interests are adverse.” Similarly, with regard to the allocation of peremptory

                                                -3-
challenges during voir dire, MCR 2.511(E)(2) recognizes the relationship between different
entities or parties “on the same side” and their entitlement to a specific number of peremptory
challenges premised on their alignment or the existence of “adverse interests.” As discussed in
Dobrzenski v Dobrzenski, 208 Mich App 514, 515; 528 NW2d 827 (1995):

       Due process applies to any adjudication of important rights. It is a flexible
       concept calling for such procedural protections as the particular situation
       demands.      Due process requires fundamental fairness, which involves
       consideration of the private interest at stake, the risk of an erroneous deprivation
       of such interest through the procedures used, the probable value of additional or
       substitute procedures, and the state or government interest, including the function
       involved and the fiscal or administrative burdens imposed by substitute
       procedures. [Citations and quotation marks omitted.]

        Elite is unable to demonstrate that the trial court’s procedural restrictions were
fundamentally unfair. In this instance, Elite’s concerns are aligned with Seay’s because both are
seeking the payment of PIP benefits to Seay. While the trial court precluded Elite’s counsel
from providing an opening statement that was separate from or in addition to that provided by
Seay’s counsel, it indicated that counsel should coordinate their efforts to avoid having the
“jurors hear multiple openings” that were duplicative. Specifically, the trial court deemed a
separate opening statement by Elite to be unnecessary because, “It’s the same issue.” The trial
court did indicate that if there was a disagreement between the parties or one would not be able
“to cover the issues in one opening statement,” an exception might be made. The trial court
afforded counsel for Elite the opportunity to discuss the opening statement before initiating the
proceedings. Notably, Elite does not suggest or assert that Seay’s counsel failed to include,
identify or present concerns that were significant to Elite in her opening statement. Elite does
not proffer what additional information or assertions it would have provided in its opening
statement that would distinguish it from the opening statement by Seay’s counsel or how any
particular omission from the opening statement allegedly affected the outcome of the
proceedings.

        “[T]he purpose of an opening statement is to tell the jury what the advocate will attempt
to prove.” Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 503; 668 NW2d 402 (2003).
Its importance is somewhat diminished by the ability to waive the provision of an opening
statement, MCR 2.507(A), and the absence of evidentiary value attributable to such statements,
see Guerrero v Smith, 280 Mich App 647, 658; 761 NW2d 723 (2008) (indicating that the
“arguments and remarks of the attorneys were not evidence.”). In the circumstances of this case,
Seay’s counsel identified the parties, the relevant events and that Seay had incurred treatment as
a result of his accident that involved a motor vehicle, the costs of which 21st Century had
declined to pay. As such, despite the preclusion by the trial court of Elite presenting its own
opening statement, the prohibition cannot be shown to have adversely affected the outcome of
the proceedings, to have inhibited Elite’s claims, or to have comprised error.

        Elite also challenges the trial court’s preclusion of its direct involvement in voir dire of
the jury. The trial court indicated that it permits only “a very, very brief period for anyone to ask
voir dire questions because I cover them.” The trial court did not prevent Elite from proposing
questions to be directed to the potential jurors. Rather, it required Elite to work with Seay’s

                                                -4-
counsel, indicating it would permit “one side or the other” to ask a question deemed to be
appropriate. The trial court also indicated it would permit follow up questions if during voir dire
“someone brings up something of special interest to you.” During voir dire, it became obvious
that Elite’s counsel had generated questions to be directed to the potential jurors, when Seay’s
counsel indicated “looking at co-counsel’s list, you know, I don’t think I have any other
questions.” As such, the implication is that Elite was able to productively participate in voir dire
without any restriction, except for the requirement that the questioning be done by one attorney
rather than both. As such, Elite did meaningfully engage or participate in voir dire.

        Further, Elite’s contention that if it had been allowed a more direct role in voir dire, the
necessity of dismissing a juror would have been avoided is ludicrous. After counsel had
indicated satisfaction with the jurors selected but before the jury was sworn in, a juror posed a
question to the trial court to acknowledge that although the prospective jurors had been queried if
spouses worked for an insurance company, he did not previously reveal that his daughter worked
for an insurance company not involved in this litigation. The trial court initiated further inquiry
of the juror to determine if his daughter’s employment would, in some manner, influence his
ability to be objective and unbiased and also permitted Seay’s counsel to question the juror.
When the additional inquiry concluded, the trial court offered counsel the opportunity to exercise
another peremptory challenge, which was declined.

       On the second day of trial, the same juror informed the trial court and counsel, outside the
presence of the remaining jurors that while at dinner the previous evening he overheard a
conversation in which the reputation of Seay’s physician, Dr. Radden, was being impugned. The
juror acknowledged that overhearing the conversation caused him to seriously question the
testimony of Dr. Radden that was presented on the first day of trial, before having overheard this
exchange at dinner. The juror expressed concern that, having been involuntarily privy to this
discussion regarding Dr. Radden, the juror would have difficulty remaining “fair and impartial.”
Seay’s counsel requested that the juror be excused and the trial court dismissed the juror.

         Initially, Elite’s counsel did not challenge this juror, through Seay’s counsel, when he
first revealed his relationship to an individual employed by an insurance company. In effect, the
approval of this juror by Seay’s counsel obviates any objection now purportedly asserted.
“Waiver is the voluntary and intentional relinquishment of a known right. ‘One who waives his
rights under a rule may not then seek appellate review of a claimed deprivation of those rights,
for his waiver has extinguished any error.’ ” Varran v Granneman, 312 Mich App 591, 623; 880
NW2d 242 (2015) (citation omitted). Further, it is disingenuous and ludicrous of Elite to
contend that it could have, on voir dire, somehow anticipated or predicted the juror’s inadvertent
overhearing of a discussion after the jury was empaneled and while engaged in a neutral social
activity that altered the juror’s ability to be fair and impartial. At the request of Seay’s counsel,
the trial court excused this juror. Therefore, the juror’s involuntarily gained information
regarding the reputation of Dr. Radden was irrelevant to the outcome of the proceedings or the
remaining jurors’ deliberations. Given the swiftness with which the jury returned a verdict in
this matter, it is highly unlikely that the absence of the excused juror was dispositive or
significant to the verdict rendered.

                  B. ADMISSIBILITY OF EVIDENCE – EXPERT WITNESS


                                                -5-
        Elite contends the trial court erred in permitting Polly Swingle to testify as an expert
regarding physical therapy at trial. Elite’s objection is not premised on Swingle’s qualifications
as an expert or her specific testimony. Rather, Elite argues that Swingle’s delay in preparing and
providing it with a report of her conclusions that would serve as the basis for her testimony
should have precluded her presentation as a witness.

        Whether a witness qualifies as an expert and the admissibility of the testimony of the
witness are reviewed by this Court for an abuse of discretion. Surman v Surman, 277 Mich App
287, 304-305; 745 NW2d 802 (2007). “An abuse of discretion exists if the decision results in an
outcome outside the range of principled outcomes.” Id. at 305. To the extent that this issue
pertains to questions regarding the interpretation or application of the court rules, review is de
novo. AFP Specialties, Inc v Vereyken, 303 Mich App 497, 504; 844 NW2d 470 (2014).

        Although the facts and opinions in reports authored by experts are not deemed to
constitute “work product per se,”

       [t]he arrangement of those facts and opinions in a report, made directly responsive
       to the inquiries of an attorney, is, however, work product; a disclosure of the
       report itself would betray those thoughts, mental impressions, formulations of
       litigation strategy, and legal theories of the attorney that are protected by the
       work-product [privilege]. To hold that a party to a litigation could attain copies of
       those reports by merely making a demand for production without more would
       have the practical effect of chilling the ability of an attorney and his retained
       expert witness to freely communicate in writing. [D’Alessandro Contracting
       Group, LLC v Wright, 308 Mich App 71, 78; 862 NW2d 466 (2014) (citations and
       quotation marks omitted).]

In the circumstances of this case, however, Swingle’s report was provided before the initiation of
trial to Elite, arguably waiving any alleged privilege. “Like the attorney-client privilege, a party
may waive work-product protections.” Id. at 81 (citation omitted).

       Contrary to Elite’s underlying supposition, provision of an expert’s report is not
mandated, except under very specific circumstances. Specifically, MCR 2.302(B) provides, in
relevant part:

       (3) Trial Preparation; Materials.

       (a) Subject to the provisions of subrule (B)(4), a party may obtain discovery of
       documents and tangible things otherwise discoverable under subrule (B)(1) and
       prepared in anticipation of litigation or for trial by or for another party or another
       party’s representative (including an attorney, consultant, surety, indemnitor,
       insurer, or agent) only on a showing that the party seeking discovery has
       substantial need of the materials in the preparation of the case and is unable
       without undue hardship to obtain the substantial equivalent of the materials by
       other means. In ordering discovery of such materials when the required showing
       has been made, the court shall protect against disclosure of the mental



                                                -6-
       impressions, conclusions, opinions, or legal theories of an attorney or other
       representative of a party concerning the litigation.

                                               * * *

       (4) Trial Preparation; Experts. Discovery of facts known and opinions held by
       experts, otherwise discoverable under the provisions of subrule (B)(1) and
       acquired or developed in anticipation of litigation or for trial, may be obtained
       only as follows:

       (a)(i) A party may through interrogatories require another party to identify each
       person whom the other party expects to call as an expert witness at trial, to state
       the subject matter about which the expert is expected to testify, and to state the
       substance of the facts and opinions to which the expert is expected to testify and a
       summary of the grounds for each opinion.

       (ii) A party may take the deposition of a person whom the other party expects to
       call as an expert witness at trial. The party taking the deposition may notice that
       the deposition is to be taken for the purpose of discovery only and that it shall not
       be admissible at trial except for the purpose of impeachment, without the
       necessity of obtaining a protective order as set forth in MCR 2.302(C)(7).

       (iii) On motion, the court may order further discovery by other means, subject to
       such restrictions as to scope and such provisions (pursuant to subrule [B][4][c])
       concerning fees and expenses as the court deems appropriate.

        Elite does not dispute that 21st Century disclosed the identity and area of expertise of
Swingle on its witness list before trial. Elite did not schedule Swingle’s deposition. Nor has
Elite demonstrated “substantial need” or “undue hardship” to substantiate the discovery of the
materials or the submission of a specific request for more detailed information pertaining to
Swingle’s anticipated testimony or opinions. See Backiel v Sinai Hosp of Detroit, 163 Mich App
774, 779; 415 NW2d 15 (1987) (“In those instances when reasons for seeking the reports are
legitimate, the MCR 2.302(B)(3)(a) allowance for discovery of documents and tangible things
prepared in anticipation of litigation or for trial upon a showing of ‘substantial need’ and ‘undue
hardship’ affords defendant an adequate remedy.”).

        Contrary to the assumption of Elite, the Michigan Court Rules do not require that an
expert prepare a written report. Despite the absence of any requirement in the Michigan Court
Rules, Swingle did author a report, which was provided to Elite’s counsel within days of its
completion. The trial court found that the timeliness of the provision of Swingle’s report to Elite
was sufficient, indicating, “[Y]ou’ve gotten more time on that than he’s gotten on the other one.”
Elite’s assertion that the failure to provide Swingle’s report at an earlier date precluded its ability
to prepare for trial and cross-examination of this witness is directly attributable to Elite’s own
failure to engage in permissible discovery through the scheduling of Swingle’s deposition or the
submission of pointed inquiries to 21st Century regarding her proposed or anticipated testimony.
Having failed to establish or identify a legal basis for its assertion of error, Elite’s contention
regarding the necessity of the provision of an expert report by Swingle is without merit. “An

                                                 -7-
appellant may not merely announce his or her position and leave it to this Court to discover and
rationalize the basis for his or her claims. And, where a party fails to cite any supporting legal
authority for its position, the issue is deemed abandoned.” Bill & Dena Brown Trust v Garcia,
312 Mich App 684, 695; 880 NW2d 269 (2015) (citations omitted).

                                   II. DOCKET NO. 333626

       On appeal, 21st Century contends the trial court erred in failing to award it mandatory
case evaluation sanctions against Seay. On cross-appeal, Elite contends the trial court erred in
awarding 21st Century sanctions against Elite in the amount of $25,000 under MCL 500.3148(2).

       As recognized in Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008):

       A trial court’s decision whether to grant case-evaluation sanctions under MCR
       2.403(O) presents a question of law, which this Court reviews de novo. We
       review for an abuse of discretion a trial court’s award of attorney fees and costs.
       An abuse of discretion occurs when the trial court’s decision is outside the range
       of reasonable and principled outcomes. [Citations and quotation marks omitted.]

This Court reviews de novo “questions of law, including the interpretation of statutes and the
construction, interpretation, and application of the court rules.” Truel v City of Dearborn, 291
Mich App 125, 131; 804 NW2d 744 (2010).

       In addition:

       The decision to award or deny attorney fees under MCL 500.3148(2) is reviewed
       for an abuse of discretion. An abuse of discretion occurs when the trial court’s
       decision is outside the range of reasonable and principled outcomes. However,
       for purposes of MCL 500.3148(2), a trial court’s findings regarding the
       fraudulent, excessive, or unreasonable nature of a claim should not be reversed on
       appeal unless they are clearly erroneous. A decision is clearly erroneous when a
       reviewing court is left with a firm and definite conviction that a mistake was made
       by the lower court. Any issues regarding what legally constitutes fraud in some
       respect, excessiveness, and an unreasonable foundation are questions of law
       subject to de novo review. [Gentris v State Farm Mut Auto Ins Co, 297 Mich App
       354, 361; 824 NW2d 609 (2012) (citations and quotation marks omitted).]

        Initially, 21st Century’s claim regarding the failure to award case evaluation sanctions
under MCR 2.403(O) against Seay will be addressed. The acknowledged “purpose of [MCR
2.403(O)] is to encourage the parties to seriously consider the evaluation and provide financial
penalties to the party that, as it develops, ‘should’ have accepted but did not.” Smith, 481 Mich
at 527-528.

        The trial court denied 21st Century’s request for case evaluation sanctions against Seay,
based on this court rule, because 21st Century also “rejected case evaluation as did Robert Seay.”
The circumstance of dual rejection does not preclude the award of case evaluation sanctions. As
noted in MCR 2.403(O)(1), “[I]f the opposing party has also rejected the evaluation, a party is
entitled to costs only if the verdict is more favorable to that party than the case evaluation.” In

                                                -8-
this instance, Seay and 21st Century both rejected the $40,000 case evaluation award in favor of
Seay. At the conclusion of trial, the jury entered a no cause of action judgment and declined to
award any monetary recovery to Seay. The preliminary language contained in MCR
2.403(O)(1), indicates: “If a party has rejected an evaluation and the action proceeds to verdict,
that party must pay the opposing party’s actual costs unless the verdict is more favorable to the
rejecting party than the case evaluation.”1 Use of the word “must” indicates that the imposition
of sanctions is deemed to be mandatory in unanimous evaluation awards. Allard v State Farm
Ins Co, 271 Mich App 394, 398; 722 NW2d 268 (2006). Only “three narrow exceptions to the
mandatory imposition of case evaluation sanctions” have been found to exist. Id. at 399.
Specifically:

         Under the first exception, the trial court may decline to award costs in a case
         involving equitable relief when the verdict (considering both equitable and
         monetary relief) is more favorable to the rejecting party than the evaluated award.
         The second exception applies only to dramshop actions. Finally, the trial court
         “may, in the interest of justice, refuse to award costs” when the judgment is
         “entered as a result of a ruling on a motion after the party rejected the [case]
         evaluation” under MCR 2.403(O) (2)(c). [Id. (citations omitted).]

None of the recognized exceptions are applicable to the circumstances of this case.

        The trial court implied in its rulings that it would not impose sanctions against Seay, with
regard to 21st Century’s request under MCL 500.4138(2), because of his minimal financial
resources, the limited value of Seay’s personal claim for replacement services, and the
inapplicability or viability of a fraud claim against Seay for presenting the billings of his medical
providers. Arguably, without using specific terminology, the trial court’s ruling suggests that the
denial of case evaluation sanctions was apropos in the interest of justice. MCR 2.403(O)(11)
states: “If the ‘verdict’ is the result of a motion as provided by subrule (O)(2)(c), the court may,
in the interest of justice refuse to award actual costs.” The problem that arises is that for MCR
2.403(O)(11) to be applicable, the verdict obtained must be the result of “a judgment entered as a
result of a ruling on a motion after rejection of the case evaluation” in accordance with MCR
2.403(O)(2)(c). The no cause of action judgment was, in this instance, the result of a jury
verdict, MCR 2.403(O)(2)(a). Consequently, MCR 2.403(O)(11) is inapplicable and the trial
court erred in failing to award mandatory case evaluation sanctions to 21st Century against Seay.

        Next, on cross-appeal, Elite asserts the trial court erred in awarding $25,000 in sanctions
to 21st Century under MCL 500.4138(2), premised on a lack of proof that the services provided
were excessive or fraudulent. According to 21st Century, the jury’s no cause verdict necessarily
implies that the Elite billings were excessive and not reasonably necessary or fraudulent and that
the testimony of Dr. Miller called into question whether certain procedures, as billed by Elite and
others, actually occurred.




1
    Emphasis has been added.


                                                 -9-
        Our Supreme Court’s decision in Covenant has completely altered the legal landscape on
this and other related issues. Our Supreme Court has determined:

       While [the service provider] primarily cites MCL 500.3112 as establishing a
       healthcare-provider cause of action under the no-fault act, there is nothing in the
       language of this provision that can reasonably be interpreted as vesting a
       healthcare provider with a right to demand reimbursement from a no-fault insurer
       for services the provider rendered to an insured. Although this provision allows
       insurers to pay a provider of no-fault services directly “for the benefit of” the
       insured, it does not establish a concomitant claim enforceable by an insured’s
       benefactors. Plaintiff has not pointed to any other provision in the no-fault act
       that bestows on healthcare providers a right to directly sue a no-fault insurer.
       [Covenant, ___ Mich at ___; slip op at 20-21 (footnotes omitted).]

In other words, it has been determined, “the no-fault act does not, in any provision, explicitly
confer on healthcare providers a direct cause of action against insurers.” Id.; slip op at 11. This
conclusion was explained, in part, by the Court’s analysis of other, related statutory language
contained within the no-fault act.

       The Court concluded that MCL 500.3107(a), referencing “allowable expenses . . . , is not
amenable to an interpretation that would allow a healthcare provider to sue an insurer for
reimbursement.” Covenant, ___ Mich at ___; slip op at 13. Specifically:

       MCL 500.3107(1)(a) provides that benefits are “payable” for “[a]llowable
       expenses consisting of all reasonable charges incurred. . . .” In the context of the
       no-fault act, this Court has defined “incur” as “ ‘[t]o become liable or subject to,
       [especially] because of one’s own actions.’ ” Charges for healthcare services
       rendered are not “incurred” by a healthcare provider because a provider is not
       subject to charges for the products, services, and accommodations it delivers to
       others. Nor do providers become “liable” for allowable expenses. Rather,
       charges for healthcare are incurred by others, most commonly patients, and those
       patients are the ones who become liable for payment of those charges. Therefore,
       because a healthcare provider does not incur reasonable charges and is not liable
       for allowable expenses, [the service provider’s] argument that MCL
       500.3107(1)(a) permits a provider to directly sue an insurer for reimbursement is
       not persuasive. [Id. at 13-14 (footnotes omitted).]

Of additional significance is the Court’s addressing of the relevant language of MCL 500.3112,
which provides:

       Payment by an insurer in good faith of personal protection insurance benefits, to
       or for the benefit of a person who it believes is entitled to the benefits, discharges
       the insurer’s liability to the extent of the payments unless the insurer has been
       notified in writing of the claim of some other person.

The Court determined:



                                               -10-
       The phrase “claim of some other person” does not itself confer on any person a
       “claim” or “right” to recover benefits. Rather, it presupposes that “some other
       person” otherwise possesses a claim for PIP benefits against the insurer.
       Significantly, [the service provider] is unable to demonstrate that the no-fault act
       elsewhere confers on a healthcare provider a right to claim benefits from a no-
       fault insurer. [Covenant, ___ Mich at ___; slip op at 17-18 (footnotes omitted).]

        In turn, the above reasoning leads to the Court’s specific rejection that medical providers
are claimants under the no-fault act, explaining:

       MCL 500.3148, which pertains to attorney fees, states in part that “[a]n attorney is
       entitled to a reasonable fee for advising and representing a claimant in an action
       for personal or property protection insurance benefits which are overdue.” MCL
       500.3148(1). [Covenant] similarly argues that the statute’s reference to
       “claimant” rather than “injured person” indicates that healthcare providers have
       the right to bring an independent lawsuit for payment of PIP benefits.

       [Covenant’s] reliance on the references to “claimant” rather than “injured person”
       in MCL 500.3145(1) and MCL 500.3148 is helpful to [its] argument only if
       healthcare providers are proper claimants under the no-fault act. The provisions
       cited by [Covenant] do not establish that providers possess a claim under the act.
       Because MCL 500.3145(1) and MCL 500.3148 do not create rights to PIP
       benefits that do not otherwise exist, [Covenant’s] reliance on these provisions is
       misplaced. [Id. at 21 n 37.]

Thus, our Supreme Court has definitively determined that medical providers, such as those
referenced herein, are not construed to be “claimants” for purposes of the no-fault act. And, as
previously indicated, Covenant is to be applied retroactively. W A Foote Mem Hosp, slip op at
14.

       MCL 500.3148(2) states, in relevant part: “An insurer may be allowed by a court an
award of a reasonable sum against a claimant as an attorney’s fee for the insurer’s attorney in
defense against a claim that was in some respect fraudulent or so excessive as to have no
reasonable foundation” (Emphasis added). The general applicability of this provision has
previously been discussed by this Court in Gentris, 297 Mich App at 361-362:

       The language of MCL 500.3148(2) indicates that a court may exercise its
       discretion by awarding attorney fees to an insurer, but only if a claim was in some
       respect fraudulent or so excessive as to have no reasonable foundation. The
       statute does not mandate that the court award attorney fees on a finding of fraud
       or excessiveness, nor does the statute require the court’s findings to be based on
       the jury’s verdict. However, the findings must be able to survive review under the
       clearly-erroneous standard. Further, an award of attorney fees under the statute
       can be entered by a court on the basis of either fraud standing alone or
       excessiveness with no reasonable foundation or, of course, on the basis of both
       factors. [Footnote omitted.]


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This ruling, dealing only with the discretionary nature of such awards and the general
requirements associated to qualify for an award under MCL 500.3148(2), is not contrary to or
implicated by our Supreme Court’s ruling in Covenant. However, Covenant does implicate the
applicability of this provision with regard to the trial court’s award against Elite, because Elite
does not qualify as a claimant under MCL 500.3148(2). Covenant, ___ Mich at ___; slip op at
20-21 n 37. As such, the trial court’s grant of an award in favor of 21st Century against Elite is
contrary to the statutory provision, necessitating reversal.

        Finally, any subsequent assertion by 21st Century that it was entitled to sanctions under
MCL 500.3148(2) against Seay is without merit. First, this claim has not been specifically raised
on appeal. Second, the award of such sanctions is discretionary, and within the authority of the
trial court to deny. Third, the trial court clearly indicated it saw no need to impose such
sanctions against Seay based on the inability to demonstrate fraudulent conduct on the part of
Seay simply by “presenting these bills that a doctor presented to him[.]”

        We affirm the trial court’s rulings in Docket Nos. 330099 and reverse the trial court’s
rulings in Docket No. 333626, and remand for further proceedings consistent with this opinion.
We do not retain jurisdiction.



                                                            /s/ Henry William Saad
                                                            /s/ Deborah A. Servitto
                                                            /s/ Michael F. Gadola




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