Opinion
Docket No. 74131.
Decided June 19, 1984. Leave to appeal applied for.
Marshall Lasser, for plaintiffs. Dice, Sweeney, Sullivan, Feikens, Hurbis Foster, P.C. (by Jack E. VanderMale), for defendant.
Plaintiffs are all employees of defendant who were injured in accidents after October 1, 1973, involving vehicles owned by defendant. Each plaintiff submitted an accident report after his injury, entitling him to workers' compensation benefits. Evidently, all of the plaintiffs have received or are receiving workers' compensation benefits. Defendant in this case is a self-insured employer for purposes of the workers' compensation and no-fault liability statutes.
Until 1978, the law in this state precluded an employee from obtaining no-fault benefits in addition to workers' compensation benefits. The split among the panels of the Court of Appeals which then developed was finally resolved when the Supreme Court issued its opinion in Mathis v Interstate Motor Freight System, 408 Mich. 164; 289 N.W.2d 708 (1980), on March 20, 1980. The Court ruled that an employee who suffers accidental bodily injury in the course of his employment while occupying a motor vehicle owned by the employer is entitled to collect no-fault benefits in addition to workers' compensation.
Based on that decision, plaintiffs instituted this action, seeking no-fault benefits for their past injuries. They also sought to certify the matter as a class action, but apparently no order was ever issued on that question. Several motions for summary judgment were made on both sides. The lower court twice denied defendant's motion for summary judgment, and also denied plaintiffs' motion. However, on rehearing, the lower court granted defendant's motion for accelerated judgment, from which plaintiff appeals. We affirm.
According to MCL 500.3145(1); MSA 24.13145(1), an action for no-fault benefits "may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury * * * has been given to the insurer within 1 year after the accident". The parties agree that none of the plaintiffs' injuries were as recent as within one year from the date of the filing of this lawsuit. Plaintiffs argue, however, that by giving their employer notice of their injuries sufficient to trigger workers' compensation benefits, they also fulfilled the notice requirement of the no-fault act. Plaintiffs' claim is supported by the fact that Mr. James Opperman, an employee of defendant, administered both no-fault and workers' compensation claims, so that, when plaintiffs submitted their accident reports to him and said they wanted "whatever benefits they were entitled to", defendant was implicitly on notice that plaintiffs were also seeking no-fault benefits.
Plaintiffs' logic is artful but unpersuasive: that is not the law. The same argument was made by plaintiff in Myers v Interstate Motor Freight System, 124 Mich. App. 506; 335 N.W.2d 19 (1983). In denying plaintiff's claim, this Court ruled:
"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)." Id., p 509.
The Myers analysis governs this case as well. The fact that some of the plaintiffs told Mr. Opperman to give them "whatever" benefits they had coming to them does not make this case different from Myers. At the time, all they had coming to them was workers' compensation benefits, which they received. It appears to us that plaintiffs are attempting to apply Mathis retroactively. Were there not a statute of limitations for claiming no-fault benefits, this might be an open question. Since we hold in this case that defendant employer never received notice of plaintiffs' claims for no-fault benefits, we need not delve into the fray concerning whether the limitations period is tolled between the time the notice is filed and the insurer acts on the claim. We note that this Court reached the same conclusion in a factually similar case, Combs v Commercial Carriers, Inc, 117 Mich. App. 67; 323 N.W.2d 596 (1982), lv den 417 Mich. 923 (1983).
Plaintiffs seek to argue that defendant is equitably estopped from relying on a statute of limitations defense because Mr. Opperman knew or should have known that plaintiffs might be eligible for no-fault benefits but flatly stated that their sole remedy was workers' compensation. Plaintiffs also alleged fraudulent concealment, perhaps to avoid this Court's decision in Bromley v Citizens Ins Co of America, 113 Mich. App. 131; 317 N.W.2d 318 (1982), where this Court denied a similar claim because plaintiff failed to allege fraud in the complaint. However, plaintiffs' claim of fraudulent concealment is not borne out by the pleadings or affidavits.
A plaintiff who relies upon an estoppel theory to avoid a statute of limitations defense must allege actions by defendant such as concealment of a cause of action, misrepresentation as to the statutory time in which an action may be brought, or inducement not to bring the action. Bohlinger v Detroit Automobile Inter-Ins Exchange, 120 Mich. App. 269, 275; 327 N.W.2d 466 (1982). The "concealment" or "misrepresentation" alleged by plaintiffs in this case is that Mr. Opperman failed to inform plaintiffs that, after 1977, the law was confused as to whether workers' compensation was their sole remedy. We decline to hold that Mr. Opperman was concealing or misrepresenting the law in so doing. As this Court noted in Keller v Losinski, 92 Mich. App. 468, 472; 285 N.W.2d 334 (1979):
"Nor does this Court believe that the requirements of the doctrine of equitable estoppel are met in the present action. [The insurer] did not intentionally misinform plaintiff and then seek to deny the information it had given to plaintiff. Rather, [the insurer] accurately stated to plaintiff the position which it continues to advance. There is nothing for the Court to estop [the insurer] from denying."
Since the possibility that employees who had received workers' compensation benefits might also be entitled to no-fault benefits was not even raised by this Court until 1977, we assume plaintiffs' equitable estoppel argument applies only to plaintiffs injured after 1977; before then, there would have been no reason for Mr. Opperman to mention no-fault benefits to injured employees. But we fail to see how even employees injured later could have benefitted from a statement by Mr. Opperman that they might be entitled to no-fault benefits as well. All plaintiffs' injuries occurred over one year before the Mathis decision, and thus would be precluded by this statute of limitations period. Even if the employer had decided not to deny the claim pending Mathis, it is open to question whether that would have tolled the running of the period of limitation; more recent decisions by this Court suggest it would not. Kransz v Meredith, 123 Mich. App. 454; 332 N.W.2d 571 (1983), and cases cited therein.
We further note that, since plaintiffs have already received workers' compensation for their injuries, receipt of further compensation from defendant is limited by the setoff provision of the no-fault act:
"Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury." MCL 500.3109(1); MSA 24.13109(1).
As to plaintiffs' other arguments on appeal, we do not find any abuse of discretion by the trial court in refusing to force defendant to produce the injury reports. Tack v City of Roseville, 67 Mich. App. 34; 239 N.W.2d 752 (1976), lv den 397 Mich. 827 (1976). Plaintiffs cite no authority for forcing defendant to make admissions regarding information on the injury report forms when defendant wishes to contest them. The documents may be admissible at trial under MRE 801(d)(2)(c) or under the business record exception to the hearsay rule, MRE 803(6). However, it is not the rules of evidence but rather GCR 1963, 312 which governs discovery procedures in the circuit court. Rule 312 does not authorize compelling a party to admit matters of fact. Finally, plaintiffs protest that the circuit court should have certified this lawsuit as a class action. We find no indication in the record that the circuit court has ruled on this one way or the other. Even if it ruled as plaintiffs suggest, the record is bereft of factual information we would need to review that decision.
Affirmed.
The majority states that it is open to question whether notice to the insurer tolls the one-year back provision of the no-fault act. I adhere to my position that such notice tolls the one-year limitation provision. Lansing General Hospital, Osteopathic v Gomez, 114 Mich. App. 814, 825; 319 N.W.2d 683 (1982); Preferred Risk Mutual Ins Co v State Farm Mutual Automobile Ins Co, 123 Mich. App. 416; 333 N.W.2d 303 (1983), lv den 417 Mich. 1100.9 (1983). See also Ford Motor Co v Lumbermen's Mutual Casualty Co, 413 Mich. 22; 319 N.W.2d 320 (1982); The Tom Thomas Organization, Inc v Reliance Ins Co, 396 Mich. 588; 242 N.W.2d 396 (1976); Richards v American Fellowship Mutual Ins Co, 84 Mich. App. 629; 270 N.W.2d 670 (1978), lv den 406 Mich. 862 (1979); Andrews v Allstate Ins Co, 479 F. Supp. 481 (ED Mich, 1979). I do not agree with the reasoning in Kransz v Meredith, 123 Mich. App. 454; 332 N.W.2d 571 (1983), which is cited by the majority.