Farm Bureau General Ins Co of Michigan v. Therasupport Behavioral ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
FARM BUREAU GENERAL INSURANCE UNPUBLISHED
COMPANY OF MICHIGAN, May 11, 2023
Plaintiff-Appellant,
v No. 361552
Washtenaw Circuit Court
THERASUPPORT BEHAVIORAL HEALTH & LC No. 22-000221-CZ
WELLNESS, THERASUPPORT
REHABILITATION, LLC, and ROGER
TALIAFERRO,
Defendants-Appellees.
Before: O’BRIEN, P.J., and MURRAY and LETICA, JJ.
PER CURIAM.
Plaintiff, Farm Bureau General Insurance Company of Michigan, appeals by leave granted1
the trial court’s order granting a preliminary injunction in favor of defendants, TheraSupport
Behavioral Health & Wellness, TheraSupport Rehabilitation, LLC, and Roger Taliaferro. On
appeal, Farm Bureau contends that the trial court erred as a matter of law by concluding that the
fee schedules in MCL 500.3157, as amended by 2019 PA 21, effective June 11, 2019, were not
intended to apply to persons injured in motor vehicle accidents that occurred before the effective
date of the amendment, and that retroactive application of the statute would be unconstitutional.
Farm Bureau also contends that the trial court abused its discretion by issuing a preliminary
injunction without affording Farm Bureau an opportunity to be heard and present evidence. We
affirm, but only because under MCR 7.215(J)(1) we must adhere to Andary v USAA Cas Ins Co,
___ Mich App ___; ___ NW2d ___ (2022) (Docket No. 356487). And, because the Supreme
Court has already conducted arguments in Andary v USAA Cas Ins Co, 979 NW2d 823 (Mich,
2022), we cannot invoke the conflict procedures under MCR 7.215. We affirm.
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Farm Bureau Gen Ins Co of Mich v TheraSupport Behavioral, unpublished order of the Court of
Appeals, entered June 9, 2022 (Docket No. 361552).
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I. RELEVANT FACTS AND PROCEEDINGS
The Legislature’s enactment of 2019 PA 21 and 2019 PA 22 made significant changes to
the No-Fault Insurance Act, MCL 500.3101 et seq. Among the changes, 2019 PA 21 amended
MCL 500.3157 to include fee schedules that capped the amount of certain payments or
reimbursements that a healthcare provider could receive for treating a person entitled to Personal
Injury Protection (PIP) benefits. The fee schedules went into effect on July 1, 2021. MCL
500.3157(7)(a)(i).
Defendant Taliaferro suffered a traumatic brain injury in a 1988 car accident. He received
insurance benefits under his parents’ insurance policy with Farm Bureau. Following the 2018
settlement of a lawsuit between Taliaferro and Farm Bureau for the payment of PIP benefits, Farm
Bureau began reimbursing TheraSupport Behavioral Health and Wellness, and TheraSupport
Rehabilitation, LLC (collectively, “TheraSupport”), $900 a day for room, board, and attendant
care services. In February 2022, Farm Bureau filed a complaint seeking a declaratory judgment
that the amount of PIP benefits payable to TheraSupport was capped in accordance with MCL
500.3157(7)(a)(i).
Defendants moved emergently for a preliminary injunction under MCR 3.310(A), asking
the trial court to order Farm Bureau to pay TheraSupport $900 a day for the treatment and care
that it provided Taliaferro from July 1, 2022, and to make payment within 30 days of receiving
reasonable proof of the fact and amount of TheraSupport’s claims. TheraSupport asserted in a
supporting brief that Taliaferro was being evicted because Farm Bureau had not made any
payments for residential rehabilitation and attendant care for the previous seven months.
TheraSupport argued that the likelihood that it would prevail on the merits was high because the
fee schedules of MCL 500.3157(7)(a) were not intended to apply to pre-amendment claims and
because Taliaferro’s contractual rights to full reimbursement for all reasonable charges for
residential brain injury care became legally vested when the insurance premium was paid and
Taliaferro sustained a qualifying injury that triggered payment of benefits under the policy.
Affidavits from Taliaferro’s caregivers were unanimous that it was more likely than not that
Taliaferro could not survive outside of a supportive living and rehabilitative environment.
TheraSupport argued that while Farm Bureau and the public interest would suffer no harm if the
preliminary injunction was issued, the harm to Taliaferro could be dire if the preliminary injunction
was not issued. The day after defendants filed their motion, the trial court issued an order stating
that it found oral argument unnecessary and asserting that MCL 500.3157(7) did not apply
retroactively to an injury that occurred in 1988. Essentially adopting TheraSupport’s reasoning,
the trial court issued the requested preliminary injunction.
II. STANDARD OF REVIEW
“Statutory interpretation is an issue of law that is reviewed de novo.” Shinholster v
Annapolis Hosp, 471 Mich 540, 549; 685 NW2d 275 (2004). This Court reviews for an abuse of
discretion the lower court’s decision to grant a preliminary injunction. Hammel v Speaker of House
of Representatives, 297 Mich App 641, 647; 825 NW2d 616 (2012). “[A]n abuse of discretion
occurs only when the trial court’s decision is outside the range of reasonable and principled
outcomes.” Id. (alteration in original; quotation marks and citation omitted).
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III. MCL 500.3157
Farm Bureau first contends that the trial court erred by concluding that the caps on PIP
benefits provided by the fee schedules in MCL 500.3157(7)(a) did not apply to persons injured in
accidents that occurred before the 2019 amendments to the No-Fault Act took effect. In making
this argument, however, plaintiff recognizes that Andary, ___ Mich App ___ slip op at 1, precludes
its argument, as the Andary Court held that the limitations on PIP benefits enacted by 2019 PA 21did not apply retroactively “because the Legislature did not clearly demonstrate an intent for the
amendments to apply retroactively to persons injured in pre-amendment accidents.” Id.To summarize, the Andary Court concluded that MCL 500.3157(7) and (10) could not be
applied retroactively to the injured plaintiffs because (1) there was no “clear, direct, and
unequivocal” language in the 2019 amendments or the No-Fault Act explicitly stating the
Legislature’s intent to have MCL 500.3157(7) apply retroactively; (2) the language of MCL
500.2111f(8) was insufficient to overcome the presumption against retroactivity; and (3)
retroactive application “would alter the injured plaintiffs’ settled rights and expectations under the
pre-amendment No-Fault Act, which were obtained in exchange for premiums based on
defendants’ obligation to pay all reasonable charges not subject to fee schedules or caps.” Id. at
___; slip op at 11.
Because the Supreme Court will resolve the validity of Andary in short order, we need go
no further. This Court’s decision in Andary controls.
IV. PRELIMINARY INJUNCTION
Farm Bureau next argues that the trial court abused its discretion by granting defendants’
motion for a preliminary injunction under MCR 3.310(A) without the required hearing on the
motion or providing an opportunity to otherwise respond. We find no grounds to provide Farm
Bureau with relief.
“The purpose of a preliminary injunction is to preserve the status quo pending a final
hearing regarding the parties’ rights.” Hammel, 297 Mich App at 647 (quotation marks and
citation omitted). In determining whether to issue a preliminary injunction, a trial court must
consider the following factors:
(1) the likelihood that the party seeking the injunction will prevail on the
merits, (2) the danger that the party seeking the injunction will suffer irreparable
harm if the injunction is not issued, (3) the risk that the party seeking the injunction
would be harmed more by the absence of an injunction than the opposing party
would be by the granting of the relief, and (4) the harm to the public interest if the
injunction is issued. [Id. at 648 (quotation marks and citation omitted).]
The crux of the parties’ dispute in the trial court was whether MCL 500.3157(7) operated
to cap PIP benefits that accrued after July 1, 2021, for the treatment of injuries suffered in pre-
amendment motor vehicle accidents. Defendants’ motion for a preliminary injunction advanced
several reasons why the fee schedules of MCL 500.3157(7) were not intended to apply to claims
arising from injuries suffered in pre-amendment accidents. Farm Bureau’s complaint for
declaratory relief articulated Farm Bureau’s position regarding the interpretation of the statute and
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its applicability to the payments due to TheraSupport for Taliaferro’s treatment and care.
Therefore, even though the trial court did not hold the required hearing before granting defendants’
motion for a preliminary injunction, it was perfectly aware of Farm Bureau’s position. The trial
court’s adoption of defendants’ position regarding the applicability of the statute to the PIP benefits
due for Taliaferro’s treatment was dispositive. Regardless of whether defendants demonstrated
that the remaining factors favored granting their motion, the trial court’s interpretation of MCL
500.3157(7) as inapplicable to Taliaferro compelled its decision to grant defendants’ motion for a
preliminary injunction that maintained the status quo by ordering Farm Bureau to continue paying
$900 a day for Taliaferro’s treatment.
Even though the trial court did not follow any of the procedures required by MCR 3.310,
given that the dispositive issue was the interpretation and application of MCL 500.3157(7), and
the trial court was fully apprised of Farm Bureau’s position on the matter, the trial court’s
procedural error was harmless. See MCR 2.613(A). Even if the trial court’s error was not
harmless, Farm Bureau is not entitled to any relief, given the subsequent decision in Andary. For
these reasons, we conclude that the trial court did not abuse its discretion by granting defendants’
motion for a preliminary injunction.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Christopher M. Murray
/s/ Anica Letica
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