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Peabody v. Westfield Insurance Co.5/12/2005
UNPUBLISHED
Before: Murphy, P.J., and White and Smolenski, JJ.
In this action under the no-fault act, MCL 500.3101 et seq., the circuit court held that plaintiff was not entitled to benefits predating the year prior to filing the complaint, denied plaintiff's motion to amend her complaint to add a legal malpractice claim and additional defendants, and granted defendant's motion in limine to preclude plaintiff from presenting evidence at trial regarding a claim for accommodations. Thereafter, the parties stipulated to dismiss defendant's counterclaim, and the court then dismissed the action since "no justiciable issues remain ." Plaintiff appeals as of right, and we affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
On October 20, 1984, plaintiff became a paraplegic after sustaining a spinal cord injury in an automobile accident. She was discharged from Mary Freebed Hospital, a rehabilitation facility, on February 20, 1985. Upon discharge, she needed assistance with daily living, including assistance with her bowel and bladder program.
From the time of her discharge from the hospital, February 20, 1985, until October 27, 1987, plaintiff's claims for nursing and attendant care expenses were treated as and commingled with her claims for replacement services; the claims were paid at the $20.00 per day rate for replacement services set by MCL 500.3107(1)(c). At the end of the three years following the accident, defendant's adjuster sent plaintiff a letter stating that replacement services would no longer be paid, but medical benefits would continue. Plaintiff asserts that this impliedly represented to plaintiff that she could no longer submit the nursing and attendant care claims, which had been treated as replacement services claims. According to plaintiff, neither her attorney nor the adjuster ever advised her that nursing and attendant care services constituted "reasonably necessary services" for plaintiff's care that would be covered, without the $20.00 per day cap or the three-year limitation, under MCL 500.3107(1)(a) The one-year back rule, MCL 500.3145(1), provides in pertinent part:
. . . If notice [of injury] has been given or a payment [of personal protection insurance benefits for the injury] has been made, [an action for recovery of personal protection insurance benefits] may be commenced at any time within 1 year after the most recent allowable expense . . . 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. [Emphasis added].
Plaintiff first claims that the circuit court erred in applying this rule to deny nursing and attendant care benefits from the date of her discharge from the hospital, February 20, 1985, until October 16, 2001, one year prior to the filing of this lawsuit. She asserts that a question of fact was presented regarding the adjuster's intent to defraud, and that therefore, defendant should be equitably estopped from relying on the statute of limitations.
In Conagra, Inc v Farmers State Bank, 237 Mich App 109, 140-141; 602 NW2d 390 (1999), the Court stated:
Equitable estoppel may arise where (1) a party, by representations, admissions, or silence intentionally or negligently induces another party to believe facts, (2) the other party justifiably relies and acts on that belief, and (3) the other party is prejudiced if the first party is allowed to deny the existence of those facts.
The Conagra Court further held that silence applies only where "the silent party had a duty or obligation to speak or take action." Id. at
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