Motion For Sum Disp Re Late PIP Check

MOTION FOR SUMMARY DISPOSITION RE: LATE PIP CHECK

STATE OF ________________

IN THE _________ COURT FOR THE COUNTY OF ______________

MS. PLAINTIFF and Case No. _____________

MR. PLAINTIFF, her husband,

Plaintiffs,

v.

MS. DEFENDANT and DEFENDANT

INSURANCE COMPANY,

Defendants.

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY DISPOSITION AS TO DEFENDANT COMPANY’S UNREASONABLE HANDLING OF MS. PLAINTIFF’S CLAIM

NOW COMES Plaintiffs Ms. and Mr. Plaintiff, by and through their attorneys, the Law Offices of Michael J. Morse, and for their Motion for Partial Summary Disposition as to Defendant Company’s Unreasonable Handling of Ms. Plaintiff’s Claim, state as follows:

Plaintiff Ms. Plaintiff was involved in an automobile collision on [date] in which she suffered severe and accidental bodily injuries to her neck and back.

At the time that she was involved in the collision, she was insured by Defendant Insurance Company for personal injury protection coverage (“PIP”).

The specific policy that Dorothy purchased from Defendant Company provided:

We will pay personal injury protection benefits to or for an “insured” who sustains “bodily injury.” The bodily injury must: 1. be caused by the accident; and result from the ownership or use of an “auto” as an “auto…” personal injury protection benefits consist of the following: 1. Medical expenses [including attendant care and medically necessary mileage] 3. Work loss, 4. Replacement Services.”

Medical expenses specifically consist of “reasonable and necessary medical expenses incurred for an insured’s care, recovery, or rehabilitation.” This includes attendant care benefits and medically necessary mileage as well.

Work loss is defined as up to 85% if the “insured’s” actual loss of income from work.

Replacement services are defined as reasonable expenses for obtaining services to replace those the “insured” would have done, without pay and for the benefit of that “insured” or that “insured’s” dependants.

As a direct result of this motor vehicle collision, through her Defendant Company Insurance Policy, Ms. Plaintiff incurred at least the following “covered expenses:” medical expenses including attendant care and medically necessary mileage, work loss, and replacement service benefits.

Proof of same was submitted to Defendant Insurance Company on numerous occasions as detailed in the following Brief. However, it is indisputable that Defendant Company at least had proof of these covered expenses on [date] when Defendant Company sent Plaintiff a copy of her PIP file. In reality, Defendant Company had received proof of these covered losses long before [date].

Even though Plaintiff had provided reasonable proof on numerous occasions, Defendant Company unreasonably refused to pay these benefits until after litigation was initiated and not until [date].

Interestingly, on [date], Citizens admitted responsibility for at least some outstanding benefits by submitting a $64,506.52 unreasonably overdue payment of outstanding personal injury protection benefits to Plaintiff, Ms. Plaintiff.

Defendant Company’s unreasonably overdue payment of personal injury protection benefits is a clear admission of Defendant Company’s obligation to pay these benefits and its unreasonable handling of Ms. Plaintiff’s claims.

Defendant Company’s unreasonable handling of Ms. Plaintiff’s claim and failure to promptly pay personal injury protection benefits certainly triggers the assessment of no-fault interest and attorney’s fees.

No-fault penalty interest is governed by MCL 500.3142. Simply put, “benefits must be paid within thirty days after an insurer receives reasonable proof of the fact and of the amount of the loss sustained.” MCL 500.3142(2). The failure to pay within thirty days subjects the insurer to a twelve percent simple interest penalty: “An overdue payment bears simple interest at the rate of 12% per annum.” MCL 500.3142(3).

No-fault penalty interest accrues automatically on overdue benefits. Penalty interest is not dependent on a finding of unreasonableness or bad faith. A good faith dispute does not preclude the accrual of no-fault interest either. A carrier rejects a claim at its own risk. It will owe interest if its interpretation of the statute proves to be erroneous. If this result seems harsh, it must be remembered that the Defendant had the full and unimpeded use of the sum involved during this dispute. Nash v. DAIIE, 120 Mich. App. 568, 572-73 (1982). See also Bach v. State Farm Mutual Automobile Insurance Co., 137 Mich. App. 128 (1984).

In addition to interest, the Plaintiff is entitled to attorney fees. MCL 500.3148(1) provides for the recovery of reasonable attorney fees when a no-fault insurer unreasonably fails to pay no-fault benefits or delays paying the benefits: An 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. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.

Where benefits are not paid within the statutory period, a rebuttable presumption of unreasonable refusal or undue delay arises such that the insurer has the burden to justify the refusal or delay. Combs v. Commercial Carriers, Inc., 117 Mich. App. 67, 73; 323 NW2d 596 (1982).

Defendant Company’s recent and unreasonably overdue $64,506.52 payment can only be construed as an admission by Defendant Company that:

Ms. Plaintiff had previously supplied the defendant adequate proofs necessary to support her claims for wage loss, household services, attendant care, and medical mileage;

Defendant Company is and was in fact responsible to pay Ms. Plaintiff’s previously submitted claims;

Defendant Company failed to timely pay Ms. Plaintiff benefits that were in fact due; and

Defendant Company has acted unreasonably in handling Ms. Plaintiff’s claims.

Thus, no disputable material questions of fact remain, and Defendant Company failed to pay Plaintiff her rightfully owed personal injury protection benefits within 30 days of the submission of reasonable proof as required by MCL 500.3142(2).

This Honorable Court must rule as a matter of law that interest and attorney fees...