Appeals Court rules Michigan’s 2019 no-fault law changes are not retroactive and violate state constitution

Come writers and critics
Who prophesies with your pen
And keep your eyes wide open
Luck won’t come back
And don’t speak too soon
‘Cause the wheel is still turning
And there’s no way to tell who
That it’s namin’
For the loser now
Will be later to win
For the times they change

“The Times They’re A-Changin’.” -Bob Dylan

Earlier today, the Michigan Court of Appeals reversed the trial court’s decision in the case. Andary, et al v USAA Casualty Insurance Company question in a 2-1 decision.

Judge Douglas Shapiro wrote the majority opinion and Judge Sima Patel concurred; Judge Jane Markey dissented. As to its reasoning, the majority opinion was that: (1) the Michigan Legislature has not clearly demonstrated its intention to retroactively apply the 2019 Amendments to persons injured in pre-Amendment crashes; and (2) even if retroactive intent was demonstrated, the 2019 Amendments would impose new limits that would significantly impair no-fault insurance contracts entered into before June 11, 2019 and, therefore, violate the Contract Clause of the Constitution from Michigan.

Majority opinion

With respect to the issue of retroactivity raised on appeal, the majority focused on the fact that the plaintiffs’ motor vehicle accidents occurred prior to the 2019 amendments and that the no-fault insurance policies then in effect force provided for unlimited Personal Injury Protection (PIP) benefits. Because of these facts, the court held that the 2019 Amendments significantly changed “the established expectation[s]and the long-term addiction of the plaintiffs. These expectations and rights were obtained in exchange for premiums based on defendants’ obligation to pay all reasonable costs not subject to fee schedules or caps.

Going further, the majority found that the 2019 Amendments contained no “clear, direct and unequivocal” expression of intent to have them applied retroactively. Despite the fact that the defendants pointed to another section of the Michigan Insurance Code that arguably supported retroactivity (namely, MCL 500.2111f), the majority found it insufficient to rebut the presumption of prospectiveness.

The majority could have made up its mind at that time. But they also ruled in favor of the plaintiffs regarding their argument that the 2019 amendments violated the contract term of the Michigan Constitution. Applying the three-part balancing test for such a breach, the majority first concluded that the breaches of contract were serious. Sticking to the same theme as they called for retroactivity, the majority noted that no-fault insurance policies then in effect provided unlimited PIP benefits and required defendants to pay regardless of fee schedules or hourly caps for attendant care. Therefore, they felt that the 2019 Amendments removed many of the tasks for the respondent entirely.

With respect to the other two prongs of the balancing test, the majority did not find that the defendants explained how the application of the 2019 Amendments to pre-Amendment accidents related to the legitimate objective of reducing premiums no-fault insurance. The majority also did not find this request reasonable. The majority said allowing insurers to retain premiums from pre-amendment accidents was a boon. In other words, they were able to keep the pre-modification premiums while only having to pay a “fraction of the benefits provided for in these policies”.

As noted in my original blog on this case, the plaintiffs also advanced arguments based on the equal protection and due process clauses. Since his ruling on retroactivity brought complete relief to aggrieved plaintiffs, the issue of prospective application need not be addressed. This is not the case for the requesting supplier. The majority held that the Supplier Plaintiff had standing to argue the prospective application of the 2019 Amendments. But because the Supplier Plaintiff’s action was dismissed for lack of standing in the trial court, there is no had no adequate record to respond to his argument regarding the equal protection and due process clauses.

CONTESTATION

In stark contrast to the majority, Judge Markey’s dissent held that the 2019 Amendments applied to all motor vehicle accidents, even those that occurred before the 2019 Amendments. Further, she held that the constitutional claims of the plaintiffs would be doomed.

To buttress her dissent regarding “retroactive” application, Judge Markey noted that the 2019 amendments did not apply to any treatment or training previously received. Although she conceded that there would be treatment or training related to a prior event (i.e., those initiated on or after July 2, 2021) did not constitute a “retroactive” application. But even if the application of the 2019 amendments turned out to be a retroactive application, Judge Markey found that the Michigan Legislature had clearly demonstrated an intent to be applied to accidents prior to the amendment in MCL 500.2111f.

Regarding arguments that the 2019 Amendments violated the Contract Clause of the Michigan Constitution, Judge Markey pointed out that the judiciary is responsible for deciding whether the 2019 Amendments could survive rational scrutiny (that is i.e. the lowest level of review). Part of the stated purpose of the 2019 amendments was “to ensure the continued availability and affordability of automobile insurance. . . in this state and to facilitate the purchase of this insurance by all residents of this state at fair and reasonable rates[.]She concluded that the Michigan legislature accomplished this task without acting arbitrarily or irrationally.

Conclusion

As we sit here today, the decision of the Court of Appeal in Andary is the published case law. In its simplest form, it represents the idea that a no-fault insured who was involved in a motor vehicle accident before the change is not subject to the 2019 changes. But that won’t be the last time. that an appeal body will consider the case. As I mentioned earlier, this case will almost certainly be appealed to the Michigan Supreme Court. Note that the arguments advanced by plaintiffs and defendants will be much the same – perhaps a little more pointed, a little more focused.

My original blog highlighted the social impact of Bob Dylan’s “The Times They Are A-Changin'”. But for this updated blog, it seemed much more appropriate to highlight one of the verses at the start. Especially the following,And don’t speak too soon, ‘Cause the wheel is still turning.” So it goes with this case. We will keep you updated on the appeal process as it no doubt continues to unfold.