Myers v. Interstate Motor Freight System , 124 Mich. App. 506 ( 1983 )

124 Mich. App. 506 (1983) 335 N.W.2d 19

MYERS
v.
INTERSTATE MOTOR FREIGHT SYSTEM

Docket No. 61593.

Michigan Court of Appeals.

Decided March 4, 1983.

Metry, Metry & Sanom (by Kenneth J. Kurncz), for plaintiff.

Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark (by Mark E. Morley, for defendant.

Before: DANHOF, C.J., and J.H. GILLIS and H.E. DEMING,^[*] JJ.

PER CURIAM.

On July 8, 1981, plaintiff, Joseph Myers, filed a complaint against defendant, Interstate Motor Freight System, alleging that plaintiff was injured on March 14, 1974, while employed by defendant. Plaintiff sought to obtain no-fault benefits from defendant, who was self-insured for both workers' compensation and no-fault liability at the time of the accident. On October 9, 1981, the trial court granted defendant's motion for accelerated judgment under GCR 1963, 116.1(5), on the ground that plaintiff had failed to file his action for no-fault benefits within the one-year period of limitations stated in MCL 500.3145(1); MSA 24.13145(1). Plaintiff's motion for rehearing of the motion for accelerated judgment was also denied by the trial judge. Plaintiff appeals as of right.

Plaintiff notified defendant immediately after his injury in 1974 and plaintiff received workers' compensation benefits. Plaintiff did not file a claim for no-fault benefits at that time, allegedly because he believed that workers' compensation was his exclusive remedy. On May 18, 1981, plaintiff's attorney sent defendant a letter stating that defendant was responsible for no-fault benefits for medical expenses incurred by plaintiff. Defendant denied plaintiff's claim on June 12, 1981.

On appeal, plaintiff bases his argument on the Supreme Court's decision in Mathis v Interstate Motor Freight System, 408 Mich 164; 289 NW2d 708 (1980), which allowed an employee injured in a motor vehicle accident during the course of his employment to collect no-fault benefits from the employer's insurer as well as workers' compensation benefits. Plaintiff argues that, since defendant was both a no-fault and workers' compensation self-insurer, his report to defendant of the automobile accident and injury was sufficient notice under MCL 500.3145(1); MSA 24.13145(1) to extend that one-year period of limitations provided for in that section. Plaintiff also argues that the period of limitations was tolled until defendant formally denied plaintiff's no-fault claim on June 12, 1981. Under this analysis, plaintiff's July 8, 1981, complaint was filed well within the one-year limitation period.

MCL 500.3145(1); MSA 24.13145(1) provides:

"(1) 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."

The statute requires the notice of injury to be given "by a person claiming to be entitled to benefits" or someone on his behalf.

In the instant case, plaintiff admits that he did not claim to be entitled to no-fault benefits at the time he notified defendant of his injury. Plaintiff claimed workers' compensation benefits only. Under the plain language of the statute, plaintiff's notice of injury did not operate to extend the one-year period of limitations applicable to actions for no-fault benefits. The fact that at the time of plaintiff's injury neither this Court nor the Supreme Court had ruled that both workers' compensation and no-fault benefits were available to an employee injured in a motor vehicle during the course of his employment does not alter the notice requirement of MCL 500.3145(1); MSA 24.13145(1). The trial court correctly granted defendant's motion for accelerated judgment, as plaintiff's complaint was filed more than six years after the period of limitations had expired.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.