STATE OF MICHIGAN COURT OF APPEALS

STATE OF MICHIGAN COURT OF APPEALS JULIAN LAFONTSEE, Plaintiff-Appellant, UNPUBLISHED March 27, 2014 v No. 313613 Kent Circuit Court HOME-OWNERS INSURANCE COMPANY, LC No. 11-010346-NI Defendant-Appellee. Before: GLEICHER, P.J., and HOEKSTRA and O CONNELL, JJ. PER CURIAM. In this action for personal protection insurance (PIP) benefits under the no-fault act, MCL 500.3101 et seq., plaintiff appeals as of right the trial court s order denying his motion to proceed with declaratory judgment. We affirm. According to the complaint, plaintiff was injured by a motor vehicle. Defendant provided some PIP benefits to plaintiff, but discontinued the benefits after an independent medical evaluation of plaintiff. Plaintiff filed the present suit seeking payment of PIP benefits and also seeking a declaratory judgment regarding future benefits. During the course of the litigation, the trial court issued an order striking the independent medical examiner from defendant s witness list. Plaintiff then moved the trial court for summary disposition of all claims, albeit approximately one month after the deadline set by the trial court for filing summary disposition motions. The trial court denied the motion as untimely. The suit then proceeded to case evaluation. The panel evaluated the case for plaintiff as follows: $85,000 for accrued no fault benefits, and does not include any award for future allowable expenses that have not been incurred. Both parties accepted the panel s evaluation, and defendant timely paid the award. Subsequently, the trial court dismissed the entire action pursuant to MCR 2.403(M)(1). The dismissal order stated, [t]his case is hereby DISMISSED. The effect of this order does not preclude Plaintiff from bringing new claims for any future nofault benefits which have accrued or may accrue after [the case evaluation date]. On appeal, plaintiff first argues that the trial court erred by dismissing the entire case. According to plaintiff, the case evaluation resolved only his accrued benefits claim, leaving the declaratory judgment claim for resolution by the trial court. Plaintiff s argument requires us to consider the trial court s construction of MCR 2.403(M)(1). We review de novo the court s construction of the rule. Neville v Neville (On Remand), 295 Mich App 460, 466; 812 NW2d -1-

816 (2012). The overriding goal of judicial interpretation of a court rule is to give effect to the intent of the authors. Wilcoxon v Wayne Co Neighborhood Legal Services, 252 Mich App 549, 553; 652 NW2d 851 (2002). This Court gives effect to the rule maker s intent as expressed in the court rule s terms, giving the words of the rule their plain and ordinary meaning. Kloian v Domino s Pizza LLC, 273 Mich App 449, 458; 733 NW2d 766 (2006). When a court rule is unambiguous, further interpretation is not only unnecessary but is disallowed. Wilcoxon, 252 Mich App at 553. As of the case evaluation date, MCR 2.403(M)(1) read as follows: If all the parties accept the panel s evaluation, judgment will be entered in accordance with the evaluation, unless the amount of the award is paid within 28 days after notification of the acceptances, in which case the court shall dismiss the action with prejudice. The judgment or dismissal shall be deemed to dispose of all claims in the action and includes all fees, costs, and interest to the date it is entered, except for cases involving rights to personal protection insurance benefits under MCL 500.3101 et seq., for which judgment or dismissal shall not be deemed to dispose of claims that have not accrued as of the date of the case evaluation hearing. [Emphasis added.] The plain language of the rule required the trial court to dismiss all of plaintiff s claims in the suit once both parties accepted, and defendant timely paid, the case evaluation award. Our Supreme Court has stated that accepting a case evaluation means that all claims in the action, even those summarily disposed, are dismissed, and [i]f all parties accept the panel s evaluation, the case is over. CAM Constr v Lake Edgewood Condo Ass n, 465 Mich 549, 555, 557; 640 NW2d 256 (2002). Plaintiff points out that MCR 2.403(M)(1) was amended after our Supreme Court issued CAM Constr, 465 Mich 549. Plaintiff then argues that CAM Constr no longer controls the interpretation of the rule. We disagree. The second sentence of the rule, which contains the amendment, expresses no intent to modify the dismissal required by the first sentence. Therefore, the amended form of the rule still requires the dismissal of all claims upon both parties acceptance of the case evaluation award and the prompt payment of the award. The amended language of MCR 2.403(M)(1) simply assures any plaintiff that an acceptance of a case evaluation award will not bar him from seeking future PIP benefits. Therefore, pursuant to MCR 2.403(M)(1) and CAM Constr, when both parties accepted and defendant timely paid the case evaluation award, the case was over. As such, the trial court properly dismissed the entire action. 1 Additionally, plaintiff argues that the trial court acted improperly by denying his motion for summary disposition as untimely. We need not address that argument because, under CAM 1 Plaintiff s reliance on Manley v DAIIE, 425 Mich 140; 388 NW2d 216 (1986), and its progeny is misplaced because those cases do not consider the procedure required after parties accept a case evaluation award. -2-

Constr, 465 Mich at 550, a party cannot appeal an adverse summary disposition decision after accepting a case evaluation award. Affirmed. /s/ Joel P. Hoekstra /s/ Peter D. O Connell -3-

both parties accepted the case evaluation award, the case ended, precluding declaratory relief. I believe that the majority has incorrectly construed MCR 2.403(M)(1), and respectfully dissent. Plaintiff sought declaratory relief as well as payment for accrued PIP benefits. MCR 2.605(A)(1) provides: In a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted. A declaratory judgment enable[s] the parties to obtain adjudication of rights before an actual injury occurs, to settle a matter before it ripens into a violation of the law or a breach of contract, or to avoid multiplicity of actions by affording a remedy for declaring in expedient action the rights and obligations of all litigants. [Rose v State Farm Mut Auto Ins Co, 274 Mich App 291, 294; 732 NW2d 160 (2006).] In the first-party no-fault context, a declaratory judgment may settle coverage disputes before unnecessary or inappropriate costs are accrued, serving both an insured and an insurer. In Manley v DAIIE, 425 Mich 140, 157; 388 NW2d 216 (1986), the Supreme Court held that when a dispute concerning PIP benefits arises, a court may enter a declaratory judgment determining that an expense is both necessary and allowable and the amount that will be allowed. The Supreme Court further explained: Such a declaration does not oblige a no-fault insurer to pay for an expense until it is actually incurred. Id. Manley involved a plaintiff who had suffered a severe closed head injury. Id. at 145. The Supreme Court observed that the plaintiff will not regain his faculties and that some nurse s aides will probably be required for the rest of his life. Id. at 158. In that case the trial court entered and the Supreme Court reinstated a declaratory judgment ordering payment for the plaintiff s daily room and board charges and nurses aide expenses. The Supreme Court modified the judgment to reflect that nursing services are payable up to a maximum of $128 per day, upon submission to DAIIE of bills to substantiate the charges from established nursing companies. Id. at 149-150. Despite entry of the declaratory judgment, the Supreme Court expressed that either the plaintiff or the defendant could seek a redetermination of the amounts properly allowable, or whether the plaintiff s recovery made additional nursing services unnecessary. Id. at 158-159. Post-Manley, there should be no doubt that a plaintiff may seek and obtain a declaratory judgment regarding a defendant s liability for future PIP benefits. Defendant has not challenged that Manley affords a no-fault plaintiff the right to seek declaratory judgment. My disagreement with the majority centers on whether a plaintiff seeking both accrued PIP benefits and a declaratory judgment regarding future benefits automatically forgoes declaratory judgment by accepting a favorable case evaluation award. The majority holds that [t]he plain language of the rule required the trial court to dismiss all of plaintiff s claims in the suit once both parties accepted, and defendant timely paid, the case evaluation award. I believe that plain language of the Court Rule dictates precisely the opposite conclusion. Before May 1, 2012, MCR 2.403(M)(1) provided: -2-

If all the parties accept the panel s evaluation, judgment will be entered in accordance with the evaluation, unless the amount of the award is paid within 28 days after notification of the acceptances, in which case the court shall dismiss the action with prejudice. The judgment or dismissal shall be deemed to dispose of all claims in the action and includes all fees, costs, and interest to the date it is entered.... [Emphasis added.] On May 1, 2012, five months before the parties accepted the case evaluation, the Supreme Court amended the court rule by adding important new language specifically applicable to claims for personal protection no-fault insurance benefits: If all the parties accept the panel s evaluation, judgment will be entered in accordance with the evaluation, unless the amount of the award is paid within 28 days after notification of the acceptances, in which case the court shall dismiss the action with prejudice. The judgment or dismissal shall be deemed to dispose of all claims in the action and includes all fees, costs, and interest to the date it is entered, except for cases involving rights to personal protection insurance benefits under MCL 500.3101 et seq., for which judgment or dismissal shall not be deemed to dispose of claims that have not accrued as of the date of the case evaluation hearing. [Emphasis added.] In my view, the following sentence preserves plaintiff s right to seek a declaration regarding benefits that have not yet accrued: The judgment or dismissal shall be deemed to dispose of all claims in the action and includes all fees, costs, and interest to the date it is entered, except for cases involving rights to personal protection insurance benefits under MCL 500.3101 et seq., for which judgment or dismissal shall not be deemed to dispose of claims that have not accrued as of the date of the case evaluation hearing. Plaintiff s claim for declaratory judgment seeks to resolve or avoid future controversy regarding defendant s obligation for future as well as accrued benefits. In my view, the Supreme Court added the except clause to MCR 2.403(M)(1) to preserve an avenue for a no-fault plaintiff to seek a declaratory ruling regarding future benefits despite satisfaction with a case evaluation award governing accrued benefits. Accordingly, I would reverse the circuit court and remand to permit plaintiff to pursue a declaratory judgment. /s/ Elizabeth L. Gleicher -3-