Opinion
366076
09-29-2023
Mendelson Orthopedics PC v. Auto Club Group Insurance Company
LC No. 2022-001893-NF
Colleen A. O'Brien Presiding Judge, Kathleen Jansen, Deborah A. Servitto Judges
ORDER
The motion to file a late answer is GRANTED and the answer filed with the motion is accepted.
Pursuant to MCR 7.205(E)(2), in lieu of granting the application for leave to appeal, the Court REVERSES the April 19, 2023 order of the Macomb Circuit Court granting partial summary disposition to defendants under MCR 2.116(C)(4) and REMANDS for further proceedings. The trial court erred by concluding that it lacked jurisdiction on the basis that plaintiff failed to exhaust administrative remedies for utilization review under MCL 500.3157a(5). The administrative remedies available under this statute are "permissive, not mandatory," and the direct cause of action available under MCL 500.3112 provides an "alternate pathway[]" for determining whether the care at issue was appropriate. See True Care Physical Therapy v ACGIC, ___ Mich.App. ___; ___ N.W.2d ___(2023) (Docket No. 362094), slip op at 4, 11, lv pending. Consequently, plaintiff could file suit to recover overdue benefits under MCL 500.3112 "without exhausting the permissive, nonexclusive administrative appeal" available under MCL 500.3157a(5). See True Care Physical Therapy, ___ Mich.App. at ___; slip op at 11.
This order has immediate effect. MCR 7.215(F)(2).
The Court does not retain jurisdiction.
Servitto, J., would grant the application for leave to appeal.