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Hudick v. Hastings Mutual Insurance Co.12/8/2000
UNPUBLISHED
Defendant appeals as of right from a circuit court order granting plaintiff's motion for summary disposition pursuant to MCR 2.116(C)(9) and (10), denying defendant's motion for summary disposition pursuant to MCR 2.116(C)(7), and entering judgment for plaintiff. We reverse. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Plaintiff was injured in a motor vehicle accident in February 1997. His own no-fault insurer paid personal injury protection benefits until October 1997, when it determined that defendant, the other driver's insurer, had highest priority under MCL 500.3114(5); MSA 24.13114(5). Defendant then assumed responsibility for such benefits. In May 1998, plaintiff requested benefits for hospital bills incurred in February and March 1997. Defendant denied coverage and plaintiff filed this action in July 1998.
The trial court's ruling on a motion for summary disposition is reviewed de novo. Gibson v Neelis, 227 Mich App 187, 189; 575 NW2d 313 (1997). A motion brought under MCR 2.116(C)(10) tests the factual support for a claim. In ruling on such a motion, the trial court must consider not only the pleadings, but also depositions, affidavits, admissions and other documentary evidence, MCR 2.116(G)(5), and must give the benefit of any reasonable doubt to the nonmoving party, being liberal in finding a genuine issue of material fact. Summary disposition is appropriate only if the opposing party fails to present documentary evidence establishing the existence of a material factual dispute. Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999). When the underlying facts are not disputed, the issue whether a claim is barred by the statute of limitations is a question of law that is reviewed de novo on appeal. Titan Ins Co v Farmers Ins Exch, 241 Mich App 258, 260; 615 NW2d 774 (2000).
Defendant asserted that plaintiff's claim was barred pursuant to MCL 500.3145(1); MSA 24.13145(1), which provides in pertinent part:
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 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.
Because defendant had notice of the injury and had paid benefits for same, plaintiff could file this action more than one year after the accident, as was done here. However, his claim for benefits was still limited to those losses incurred within a year before the filing of the complaint. Plaintiff's complaint sought coverage for losses incurred before that time. Given that defendant was not plaintiff's insurance carrier, that plaintiff specifically advised defendant that his own insurance carrier would be providing first-party benefits, and that
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