                          STATE OF MICHIGAN

                           COURT OF APPEALS



PAUL GREEN,                                                         UNPUBLISHED
                                                                    January 2, 2018
               Plaintiff-Appellant,

v                                                                   No. 333315
                                                                    Macomb Circuit Court
HOME-OWNERS INSURANCE COMPANY,                                      LC No. 2015-004584-AV
also known as AUTO-OWNERS INSURANCE
COMPANY,

               Defendant-Appellee.


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

PER CURIAM.

         Plaintiff appeals by leave granted the circuit court’s opinion and order affirming the
district court’s order granting defendant’s motion for summary disposition pursuant to MCR
2.116(C)(7) and (C)(10). We affirm.

                                       I. BACKGROUND

        On March 7, 2012, plaintiff suffered a fractured right fibula in a motor vehicle accident.
According to the hospital records, he had associated knee pain, but there was “[n]o associated
neck pain, associated chest pain, associated abdominal pain, [or] associated back pain.” On
March 22, 2012, plaintiff filed an application for benefits with defendant, describing the injury
only as a “broken right leg.” Over the next few examinations, the doctors determined that
plaintiff’s leg was healing properly. On May 21, 2012, plaintiff complained of hip pain, and
after an x-ray was conducted, he was diagnosed with “hip arthritis.” According to defendant’s
claims adjuster, by December 2013, plaintiff was not being treated for his injury.

        On March 16, 2015, plaintiff went to the hospital with complaints of arm pain.
According to the hospital records, plaintiff was found to have a “compression fracture T1.” The
hospital records also indicated that plaintiff’s clinical history included a motor vehicle crash
three years earlier and that he had “back pain since, pain and numbness in bilateral upper
extremities, [and a] compression fracture T1.” After the examination, plaintiff was diagnosed
with “mild chronic compression deformity of the superior endplates of T1 and T2.” On July 15,
2015, plaintiff filed a complaint after defendant refused to pay benefits for plaintiff’s neck
injuries. Plaintiff claimed that the doctors attributed his neck injuries to the 2012 motor vehicle
accident and that he was entitled to benefits. The district court granted defendant’s motion for
                                                -1-
summary disposition, concluding that MCL 500.3145(1) barred plaintiff’s claim because he did
not provide notice within one year of the accident that was specific enough to inform defendant
of the nature of the injury. On May 19, 2016, the circuit court affirmed the district court’s
decision. We granted leave to appeal.

        On appeal, plaintiff relies heavily on this Court’s decision in Dillon v State Farm Mut
Auto Ins Co, 315 Mich App 339; 889 NW2d 720 (2016), vacated in part ___ Mich ___ (2017)
(Docket No. 153963), for the proposition that the notice of injury required to satisfy MCL
500.3145(1) needs to only specify generally that plaintiff was injured in a motor vehicle
accident. However, in a recent order, our Supreme Court vacated this Court’s analysis of MCL
500.3145(1) and held that “notice of injury” requires specificity sufficient to describe the “nature
of the injury.” Dillon v State Farm Mut Auto Ins Co, ___ Mich ___ (2017). Thus, plaintiff’s
argument is unavailing.

                                 II. STANDARD OF REVIEW

        Defendant filed its motion pursuant to MCR 2.116(C)(7), raising an issue involving the
statute of limitations under MCL 500.3145.1 “This Court reviews de novo a trial court’s ruling
on a motion for summary disposition as well as the legal question of whether a cause of action is
barred by a statute of limitations.” Citizens Ins Co of America v University Physician Group,
319 Mich App 642; ___ NW2d ___ (2017) (Docket No. 328553); slip op at 2. Pursuant to MCR
2.116(C)(7), a party may be entitled to summary disposition if a statute of limitations bars the
claim. Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App
264, 278; 769 NW2d 234 (2009). “In reviewing a motion under subrule (C)(7), a court accepts
as true the plaintiff’s well-pleaded allegations of fact, construing them in the plaintiff’s favor.”
Nuculovic v Hill, 287 Mich App 58, 61; 783 NW2d 124 (2010). Furthermore, the trial court
considers all documentary evidence submitted by the parties in the light most favorable to the
nonmoving party. Id. at 61-62. Questions of statutory interpretation are reviewed de novo.
Ford Motor Co v Woodhaven, 475 Mich 425, 438; 716 NW2d 247 (2006). “Our review of the
circuit court’s review of the district court’s order is also de novo.” Noll v Ritzer, 317 Mich App
506, 510; 895 NW2d 192 (2016), citing First of America Bank v Thompson, 217 Mich App 581,
583; 552 NW2d 516 (1996).

                                         III. ANALYSIS

       MCL 500.3145(1) provides, in relevant part:

       (1) An action for recovery of personal protection insurance benefits payable under
       this chapter for accidental bodily injury may not be commenced later than 1 year
       after the date of the accident causing the injury unless written notice of injury as


1
  While defendant also filed its motion pursuant to MCR 2.116(C)(10), the district court entered
the order pursuant to MCR 2.116(C)(7), and this Court must review the decision based under that
court rule. See Mousa v State Auto Ins Cos, 185 Mich App 293, 294; 460 NW2d 310 (1990)
(holding that MCR 2.116(C)(7) is the proper court rule for a claim involving MCL 500.3145).


                                                -2-
       provided herein has been given to the insurer within 1 year after the accident or
       unless the insurer has previously made a payment of personal protection insurance
       benefits for the injury. If the notice has been given or a payment has been made,
       the action may be commenced at any time within 1 year after the most recent
       allowable expense, work loss or survivor’s loss has been incurred. However, the
       claimant may not recover benefits for any portion of the loss incurred more than 1
       year before the date on which the action was commenced. The notice of injury
       required by this subsection may be given to the insurer or any of its authorized
       agents by a person claiming to be entitled to benefits therefor, or by someone in
       his behalf. The notice shall give the name and address of the claimant and
       indicate in ordinary language the name of the person injured and the time, place
       and nature of his injury.

       Defendant argues that the notice provision at issue bars plaintiff’s claim for
       personal injury protection (PIP) benefits because plaintiff did not provide notice
       of his neck injury until 2014, which was more than one year after the accident.
       We agree.

       Our decision in Dillon narrowly tailored the issue as follows:

       Given [the] statutory language [under MCL 500.3145(1)], the question presented
       in this case is whether it was necessary for [the plaintiff] to specifically identify in
       her notice of injury an injury to her left hip in order to successfully pursue a claim
       for benefits related to her hip injury, when the hip-injury claim arose more than
       one year after the accident. [Dillon, 315 Mich App at 341-342.]


When evaluating the specificity of notice required under MCL 500.3145, we turned to the plain
language of the statute:

       [W]e must turn to the words of the statute itself to divine its meaning. Looking to
       the first sentence of § 3145(1), we contrast the phrase “notice of injury” with the
       phrase “benefits for the injury.” In the first phrase, which describes the notice
       that must be given to relax the application of the one-year-back rule, the use of the
       definite article “the” is conspicuously absent. The fact that the Legislature uses it
       later in the same sentence suggests that it was not mere oversight or poor
       grammar. The definite article “the” is “used as a function word to indicate that a
       following noun or noun equivalent is definite” or that it “is a unique or particular
       member of its class,” and it also serves “as a function word before a noun to limit
       its application to that specified by a succeeding element in the sentence[.]” The
       fact that the Legislature omitted its use before the word “injury” in “notice of
       injury” indicates that the Legislature was not referring to a definite or particular
       injury. That is, if the Legislature intended for the “notice of injury” to identify a
       very specific injury, such as an injury to the left hip, rather than the mere fact that
       an accident resulted in some injury, it would have provided that “notice of the
       injury” must be given. [Dillon, 315 Mich App at 343-344 (alteration in original).]


                                                 -3-
We held that “[t]he fact that [the defendant] received notice that [the plaintiff] suffered physical
injuries in a motor vehicle accident was sufficient to satisfy the statute.” Id. at 344.

        On November 9, 2017, our Supreme Court entered an order vacating “that part of the
Court of Appeals judgment analyzing MCL 500.3145 and concluding that a claimant can satisfy
the statute by merely providing notice of a physical injury.” Dillon, ___ Mich at ___ (2017)
(Docket No. 153936); slip op at 1. The Supreme Court stated:

               The Court of Appeals wrongly interpreted MCL 500.3145(1) by
       suggesting that a claimant can satisfy the statute by merely providing notice that
       she was physically injured. This holding ignores the requirement that the notice
       describe the “nature of [her] injury.” . . . If the Legislature had intended for notice
       of general physical injury to suffice, it would have stopped at “notice of injury.”
       But the Legislature required “notice of injury as provided herein,” and that
       “herein” includes, “in ordinary language,” “the name of the person injured and the
       time, place and nature of his injury.” The phrase “in ordinary language” indicates
       that the Legislature wanted claimants to be able to give notice of injury without
       recourse to specialist assistance, while the phrase “nature of his injury” refers to
       an injury’s inherent characteristics.

                Taken together, MCL 500.3145(1) requires only the kind of notice that an
       ordinary layperson can provide. A description of symptoms that are traceable to a
       diagnosed injury is sufficient to constitute such notice. The statute does not
       require a claimant to provide a precise medical diagnosis, as this would not
       constitute ‘ordinary language.’ ” [Id. at ___; slip op at 2 (citations omitted)
       (alteration in original).]

The Court concluded that the plaintiff gave notice of injury that included a sufficient description
of the “nature of [her] injury” because “the hip injury could have created the lower back pain,
[and] her initial notice can be traced to the eventual injury and was sufficient for the purposes of
MCL 500.3145(1).” Id.

        Here, unlike in Dillon, plaintiff’s notice to defendant of a leg injury was an insufficient
description of a possible fractured neck vertebra. Plaintiff’s initial complaints and treatment for
his injury were limited to his leg. Consistent with this, plaintiff described his injury in his
application for benefits as a “broken right leg.” Approximately three years later, plaintiff went to
the doctor for arm pain, and the doctor allegedly discovered that plaintiff had a fractured vertebra
he associated with the accident. There was, however, no prior indication in the medical records
that plaintiff complained about arm, hip, back, or neck pain. To the contrary, the initial hospital
records indicated that defendant had no associated pain in his neck, chest, or back.
Approximately two months after the accident, plaintiff visited a doctor for hip pain, but the
diagnosis was hip arthritis.

        Because defendant did not have actual notice of the neck injury, the question turns on
whether notice of the broken leg was sufficient to notify defendant of the nature of plaintiff’s
upper neck injury. The notice of injury must include information about the “nature of his
injury,” meaning it refers “to an injury’s inherent characteristics.” Dillon, ___ Mich at ___; slip

                                                -4-
op at 2. In Dillon, the plaintiff suffered from injuries causing pain to her left shoulder and lower
back, and she provided a timely notice describing those injuries. Id. A few years later, the
plaintiff was suffering from hip pain and diagnosed with a left hip injury that doctors attributed
to the car accident. Id. Our Supreme Court held that a description of shoulder and back pain
was sufficient because “the hip injury could have created the lower back pain” and “her initial
notice can be traced to the eventual injury.” Id. Stated differently, the hip injury could have
been the underlying cause of the shoulder and back pain at the time of the accident. Id. Here,
the description of the broken leg does not, in any way, refer to the inherent characteristics of
fractured vertebrae in the neck, and it cannot be reasonably said that the neck injury could have
created the symptoms associated with plaintiff’s broken leg. Therefore, the initial notice of the
leg injury could not be traced to the neck injury. See id. (“Because . . . the hip injury could have
created the lower back pain, [plaintiff’s] initial notice can be traced to the eventual injury and
was sufficient for the purposes of MCL 500.3145(1).”). The circuit court did not err when it
affirmed the district court’s ruling that plaintiff’s claim was barred under MCL 500.3145(1).

         According to the dissent, “the majority’s interpretation of Dillon is unnecessarily
narrow.” The dissent’s interpretation, however, would nearly strip our Supreme Court’s decision
in Dillon of any meaning. The dissent correctly states that a layperson need not provide a
“precise medical diagnosis,” but he or she must provide at least a “description of symptoms” that
are “traceable to a diagnosed injury.” Dillon, ___ Mich at ___; slip op at 2. When reviewing a
claim under MCR 2.116(C)(7) and (C)(10), we “must examine the documentary evidence
presented and, drawing all reasonable inferences in favor of the nonmoving party, determine
whether a genuine issue of material fact exists.” Dextrom v Wexford County, 287 Mich App 406,
415-416; 789 NW2d 211 (2010) (emphasis added). On the facts of this case, there is simply an
insufficient description of symptoms in plaintiff’s written notice “traceable to a diagnosed
injury.” It is unreasonable to infer that the broken leg is traceable to the neck injury and notice
was, therefore, sufficient to inform defendant of that injury. The dissent claims that we should
allow plaintiff an opportunity to obtain an expert who may “establish a link between plaintiff’s
initial injury and the later-discovered neck fracture injury.” Under these circumstances, the
circuit court did not err in finding insufficient notice because, at the time of the accident, the
symptoms associated with plaintiff’s broken leg could not reasonably be traceable to the
fractured neck vertebrae reportedly discovered nearly three years later.

       Affirmed.



                                                             /s/ Mark J. Cavanagh
                                                             /s/ Thomas C. Cameron




                                                -5-
